Ontario College of Teachers v Park, 2012 ONOCT 34

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Park, 2012 ONOCT 34

Date: 2012-06-15

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

Anthony John Park, a member of the Ontario College of Teachers.

PANEL: Robert Ryan, OCT, Chair Mel Greif

John Tucker

BETWEEN: ) David Leonard (Feb 2, 2012 & ) Caroline Zayid (May 7, 2012),

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Litigation Paraprofessional

• and – )

ANTHONY JOHN PARK ) Bernard Hanson,

(CERTIFICATE #265965) ) Cavalluzzo Hayes Shilton McIntyre &

) Cornish LLP,

) on behalf of Anthony John Park

) Julie Maciura (Feb 2, 2012) and

) Rebecca Durcan (May 7, 2012)

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: February 2 & May 7, 2012

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 2, 2012 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated July 22, 2011 was served on Anthony John Park, requesting his presence on August 8, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for February 2, 2012.

Anthony John Park was in attendance throughout the hearing.

THE ALLEGATIONS

The allegations against Anthony John Park in the Notice of Hearing, (Exhibit 1) dated July 22, 2011 are as follows:

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

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

(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he failed to comply with the Act and the 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);

(d) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

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

On February 2, 2012, Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Plea of No Contest (Exhibit 2), which provides as follows:

AGREED STATEMENT OF FACTS

1. 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.

2. The Member was employed by the Durham Catholic District School Board (the “Board”) at all material times hereto and was a [XXX] and/or [XXX] and/or [XXX] and/or [XXX] teacher at [XXX] (the “School”) in Whitby, Ontario.

3. In 2004, the Member was disciplined by the Board as a result of inappropriate interactions with two female students on a field trip. He received a disciplinary transfer to another school, underwent a psychiatric assessment and took a boundaries course. Attached as Exhibit “B” is the disciplinary letter from the Board dated September 2, 2004.

4. At all material times, Students A, B, C, D, E, and F were female Grade [XXX] and/or Grade [XXX] students of the Member.

5. During the 2007-2008 academic year, the Member while teaching class made several inappropriate comments to his class and certain students which contained sexual overtones.

6. During class time, Student A was feeling cold in the Member’s class and asked the Member if she could go get her sweater, the Member responded to Student A with his arms open, “Come over, I’ll warm you up”.

7. In addition, during a class in which the Member was discussing animals he called Student A “exotic” comparing Student A to animals.

8. During class, the Member told Student B that he wished she was his daughter. Also, the Member told Student B that he wished she could go home with him.

9. In addition, when seeing Student B in the School hallway with her boyfriend, the Member told Student B, “He better be treating you right”.

10. The Member, when confiscating a Cosmopolitan magazine from Student C and flipping through the pages said to the class, “You could learn some things from the articles” and then reading a headline of an article aloud to the class which said “Why do women want to have sex all the time?”

11. When Student C was sitting in class chatting with her friends and looking at a magazine, she indicated to her friends that a male in the magazine was cute. The Member then responded to Student C by saying “I know I’m hot, but we can’t go out cause you’re a student and I’m your teacher”.

12. During class while Student F was bent over, the Member stated to her, “I can see your underwear”.

13. The Member, while writing notes on the blackboard in class would look back to the class and state to Students A, B, C, D and E, “Girls, stop looking at my butt”.

14. The Member, while conducting class and describing organisms, cells, trees and/or plants would describe them in an inappropriate and sexual way such that he would state, “A stem is long, sometimes it goes hard, sometimes it’s soft”.

15. The Member told his class that on one occasion he confiscated a note from a student whereby he stated to the class that the contents of this note “would not even be in Playboy, about what this girl and her boyfriend would be doing on the weekend”.

16. The Member’s employment was terminated by the Board on or about November 24, 2008.

PLEA OF NO CONTEST

17. By this document the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1-16 above (the “Agreed Facts”).

18. The Member hereby acknowledges that the agreed facts referred to in paragraphs 5-15 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),1(15), 1(18 - unprofessional), and 1(19).

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 Agreed 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.

20. 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.

21. In light of the Agreed Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

On February 2, 2012, the Committee rendered its decision with respect to finding. 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 Anthony John Park committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 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 16 above of the Agreed Statement of Facts and Plea of No Contest (Exhibit 2). He acknowledged that the agreed facts referred to in paragraphs 5 to 15 above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18 - unprofessional) and 1(19).

The Committee accepted the Member’s plea of no contest and the facts in the Agreed Statement of Facts and Plea of No Contest.

The Member acted inappropriately with six female, grade [XXX] and [XXX] students who were in his charge. In these interactions, the Member made the comments, all of them highly inappropriate in a classroom setting and with persons of this age and those who were his students and in his care, such as: “I wish you could go home with me.” “Why do women want to have sex all of the time.” “Stop looking at my butt.” “I know I’m hot, but we can’t go out. Because you’re a student and I’m your teacher.” “A stem is long, sometimes it goes hard and sometimes it’s soft.” “I can see your underwear.”

These comments were made, as well as others, over the span of one year. The Member’s employment was terminated by the Board on or about November 24, 2008.

It is important to note the following details of the incidents of 2004 and the disciplinary action that ensued because they are relevant to an understanding of the nature of the misconduct.

In 2004, the Member was disciplined by the Durham Catholic District School Board as a result of inappropriate interactions with two female students on a field trip. He received a disciplinary transfer to another school, underwent a psychiatric assessment and took a boundaries course.

The panel was provided with comments made by the Board as a result of the review of the Member’s inappropriate comments and the disciplinary process that ensued. “You must understand clearly that the Durham Catholic District School Board utterly disapproves of boundary violations of any kind.”

A psychiatric and sexological evaluation reported the following: “The information provided…suggests…that Mr. Park failed to observe the expected boundary between himself - an adult male teacher - and female adolescent students…the allegations suggest a number of types of transgressions that include inappropriate words, gestures and actions that again fall under the rubric of boundary transgression.”

The Member’s board concluded “The Board hopes that you will take advantage of this opportunity and relies on a number of positive observations that Dr. Bloom makes about your regret and your intention to maintain stricter boundaries between yourself and your students in the future. Although this intention is good, we must, in the interest of students, ensure that your conduct is monitored for the next while.”

The Board Superintendent of Human Resources made the following comment: “The period of one year (of supervision) that Dr. Bloom recommends will be a minimum…it may be that the period of supervision will extend for a longer period.”

“The Board is hopeful that you will take advantage of this opportunity to make a fresh start…We expect our teachers to be sensitive and knowledgeable of boundary issues, and completely respectful of personal boundaries.”

The Committee finds that based on the Member’s aforementioned conduct, the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18) – unprofessional and 1(19).) 1(19aM1(19).

JOINT SUBMISSION ON PENALTY

Counsel for the College advised the Committee that an agreement had been reached between the parties on the appropriate penalty and introduced a Joint Submission on Penalty (Exhibit 3), which provides as follows:

1. The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

(a) directs the Member to appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

(b) directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months and the fact of the suspension is to be recorded on the Register;

(c) directs the Registrar of the Ontario College of Teachers to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms and conditions and limitations to be recorded on the Register of the College until such time as they are fulfilled:

(i) that the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violations issues; and

(ii) within thirty (30) days of his completion of the course outlined in (i) above, the Member shall provide to the Registrar a written certificate from the course provider stating:

A. that he or she has reviewed a copy of the Agreed Statement of Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

B. that the Member has successfully completed the course.

(d) 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.

SUBMISSIONS ON PUBLICATION

Counsel for the College requested that the findings and order of the Committee be published in Professionally Speaking/Pour parler profession, with the name of the Member.

The Committee was not prepared to endorse the Joint Submission on Penalty on February 2, 2012 and adjourned to May 7, 2012 to hear further submissions from counsel.

On May 7, 2012, the hearing reconvened. Counsel made further submissions. Both Counsel presented arguments and a book of authorities with similar cases to reinforce their Joint Submission on Penalty.

College counsel argued that the Joint Submission on Penalty reflects the facts of this case. The parties have come to an agreement that the Joint Submission on Penalty is within the range of similar conduct and penalty.

College Counsel provided Cerasuolo, Di Pasquale and DeSousa - a range of Ontario College of Teachers cases that reflected varying degrees of penalty provided as a group to demonstrate that the Joint Submission on Penalty was in line with the range of penalties.

Member’s Counsel provided the Committee with fourteen cases in order to provide a sense of range on penalty. The cases cited were in some instances more severe and in others less so. More severe cases were those with actions and comments directed at particular students over a long time span with actions that approached grooming. Member’s Counsel stated “There is no question that the Joint Submission on Penalty is in range.”

The Committee consulted Independent Legal Counsel on this matter of the suitability of the Joint Submission on Penalty. The Committee was reminded that the Panel of the Committee is entitled to accept or reject a Joint Submission on Penalty. The Committee has an obligation to determine the distance between a Joint Submission on Penalty and the Committee’s opinions on an appropriate penalty. The Committee must not reject a Joint Submission on Penalty unless the Joint Submission on Penalty is a severe departure from an appropriate penalty and therefore contrary to the public interest.

PENALTY

The Committee makes the following order as to penalty:

(a) the Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

(b) the Registrar of the Ontario College of Teachers is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months from May 7, 2012 and the fact of the suspension is to be recorded on the Register;

(c) the Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms and conditions and limitations to be recorded on the Register of the College until such time as they are fulfilled:

(i) that the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violations issues; and

(ii) within thirty (30) days of his completion of the course outlined in (i) above, the Member shall provide to the Registrar a written certificate from the course provider stating that he or she has reviewed a copy of the Agreed Statement of and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and that the Member has successfully completed the course; and

(d) 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

The Member’s behaviour was beyond that expected of a member of the profession. The Member has demonstrated a low level of awareness of boundaries and appropriate forms of address and communication with his students. He has done so repeatedly and over a number of years.

The Reprimand allows the Profession to communicate with the Member about his behaviour and transgressions and therefore serves a specific deterrent. The three month suspension sends a very clear message to the Member and the profession that this type of behaviour is viewed very seriously. A specific deterrent is also put into effect by the boundaries course and three month suspension. Publication with name makes it clear to the Member that he failed in acting as a member of the profession and needs to reflect on his failure.

The course provider will review copies of the Agreed Statement of Facts and Plea of No Contest, the Joint Statement on Penalty and the decision and reasons of the disciplinary Committee. The boundaries course provider will tailor a boundaries course designed to address the Member’s shortcomings. Rehabilitation is important in the discipline process. The boundaries course will hopefully have some effect on the Member.

General deterrence is a pillar of the discipline process. The profession wants to be informed about the “good” and the “bad”. Teachers expect that the standards of the profession are first and foremost in the minds of all educators. Publication with name conveys to all members the problems that educators face, the potential pitfalls of a classroom and the consequences of a failure to respond to the standards.

The public interest is served by publication with name. Publication with name makes it clear to all concerned that members of the profession are held to a high standard and the public may be assured that inappropriate behaviour will meet with a proper response. The process will be transparent and specific to the situation. The Committee is satisfied that the penalty serves the public interest.

Concerns of the Panel of the Committee

This case has been a problematic one for the Committee. It is obvious to the Committee and any observer of the Member’s behaviour, that he is a recidivist and has been immune to past cautionary employment discipline and training efforts.

The Committee is aware of the principles of penalty that “like” cases should attract “like” penalty. However it is important to appreciate that each case before the Committee is unique and all the specific aggravating and mitigating factors must be carefully considered.

The Panel of the Committee was concerned that, given all of the elements of the Agreed Statement of Facts and Plea of No Contest, the proposed penalty might prove to be ineffective because it followed the path of a previous penalty imposed by the school board.

The Committee was concerned that when presented with our viewpoints, both Counsel responded by offering cases and a book of authorities designed more to create a compelling argument in defence of the Joint Submission on Penalty. There was no attempt to respond to the concerns of the Committee. The cases offered up did not adequately address the issue of recidivism and certainly as a group, these cases were decidedly dated and did not respond to current public concerns about the discipline process. By solely harnessing the Committee to an examination of cases and appeals by precedent, they effectively shut down any effort to respond to current public interest. For this, the Committee is truly dismayed. It is hoped that in the future our concerns as guardians of the public trust will be considered to ensure that Joint Submissions on Penalty might be more sensitive to current expectations and in cases such as this, most particularly about the issue of recidivism.

Despite these reservations, the accepted penalty was not a marked departure from the Joint Submission on Penalty and by accepting it; the discipline process was not put into disrepute.

Date: June 15, 2012

______________________________ Robert Ryan, OCT

Chair, Discipline Panel

Mel Greif

Member, Discipline Panel

John Tucker

Member, Discipline Panel