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
Lorne Clifford Milsap, OCT, a member of the Ontario College of Teachers.
PANEL: Christine Bellini, OCT, Chair Irene Dembek, OCT
Mel Greif
BETWEEN: ) ) Caroline Zayid,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,
) Law Clerk )
- and – )
) Simon Blackstone,
) Ursel Phillips Fellows Hopkinson LLP
LORNE CLIFFORD MILSAP ) for Lorne Clifford Milsap
(CERTIFICATE #247876) )
) Marc Spector,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: May 24, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 24, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1), dated June 29, 2011 was served on Lorne Clifford Milsap, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on July 19, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 24, 2013.
The Member was in attendance.
THE ALLEGATIONS
The allegations against Lorne Clifford Milsap (the “Member”) in the Notice of Hearing are as follows:
IT IS ALLEGED that Lorne Clifford Milsap is guilty of professional misconduct as defined in subsections 30(2) 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) 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
(g) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing on May 24, 2013, College Counsel sought to withdraw the allegation of professional misconduct in paragraph (d), namely that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2) The Committee agrees that this allegation shall be withdrawn.
College Counsel 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 to Exhibit 2, Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
The Member was employed by the Avon Maitland District School Board (the “Board”) at all times material hereto and was a [XXX] teacher at [XXX] School (the “School”) in [XXX], Ontario.
During the 2009/2010 academic year, Student #1 was a male Grade [XXX] student at the School.
On or about the 14th day of September, 2009, the Member instructed Student #1 to go to the office to speak to a Vice Principal about not completing his work. Student #1 did not go to the office. At the end of the class, Student #1 left the classroom. The Member followed Student #1 who did not immediately proceed to the office. The Member grabbed at Student #1’s backpack in an attempt to direct Student #1 towards the office.
Student #1 pulled his backpack away from the Member.
Student #1 continued to walk down the hallway. The Member placed his body in Student #1’s path to block his way. Student #1 changed his course repeatedly, at times heading in the direction of the office, the front door of the School, and down a hallway. Each time the Member blocked his path.
Student #1 repeatedly asked the Member to let him go. The Member responded by telling Student #1 he was not going anywhere.
The Member again grabbed at Student #1’s backpack. In doing so, he physically spun Student #1 around and shoved him into a wall or locker in the hallway.
If the Student were to testify, he would say that the Member put his face very close to the face of Student #1, asked Student #1 – “Are you going to hit me?” and then told Student #1 “If you hit me, I will knock you through the wall.” If the Member were to testify, he would say that he does not recall making those remarks.
Student #1 managed to free himself and ran out of the front door of the School with the Member in pursuit. The Member told Student #1 not to act like a cry baby.
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 10 above (the “Uncontested Facts”).
The Member does not contest that the facts referred to in paragraphs 4, 6, 7, 8, 9 and 10 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(7.1), 1(15), 1(18) 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 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 submits that the Discipline Committee should find the Member guilty of professional misconduct.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Lorne Clifford Milsap committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1),1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 above (the “uncontested facts”) of the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2). He acknowledged that the uncontested facts referred to in paragraphs 4, 6, 7, 8, 9 and 10 constitute conduct which is professional misconduct and 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(7.1), 1(15), 1(18) 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.
The Member confronted a student who refused a seemingly reasonable request to go to the Vice Principal’s office. Upon the refusal of the student to accede to this request, the Member physically directed the student a number of times. During this time, the student was turned around and also shoved into a locker. The student attempted to leave the School, but was pursued by the Member whereby a verbal exchange ensued. During that exchange, the Member stated, “Are you going to hit me?” The Member responded also by stating, “If you hit me, I will knock you through the wall”. The student was pursued beyond the School by the Member where the student was told not to “act like a cry baby”.
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(7), 1(7.1), 1(15), 1(18) and 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee administer a reprimand, direct the Registrar to impose terms, conditions or limitations on the Member’s Certificate of Qualification and Registration requiring the successful completion of one course, pre-approved by the Registrar, at the Member’s own expense, in positive discipline strategies and classroom management. The Member shall deliver to the Registrar, within thirty (30) days of completion of the course:
a) a written certificate from the course provider stating that he or she has received a copy of the Statement of Uncontested Facts and Plea of No Contest document and a copy of the Committee’s Decision and Reasons for Decision, and
b) proof of the Member’s successful completion of the course.
The parties had not agreed on whether or not the Member’s name should be published and made submissions on that issue.
SUBMISSIONS ON PUBLICATION
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 Member used physical force against the student and therefore, the matter was serious enough to warrant publication with name. College Counsel further submitted that it is important to send a strong message to members of the profession that these behaviours will not be tolerated.
Member’s Counsel argued that the Member taught for thirty-one (31) years, has never made a mistake until now, the incident was a single exchange and that four (4) years have passed with no repetition of this misconduct. The Member is still employed with the same Board and publication with name would have a negative impact on his reputation. A further argument against publication with name was that information about this matter will be on file on the College website and thereby be available to the general public and therefore publication with name merely serves to “narrow-cast to a subset of the general public - the profession”.
In reply submissions, College Counsel stressed even though this was a one day event, the Member’s actions were serious enough to merit publication with the Member’s name.
PENALTY DECISION
The Committee makes the following order as to penalty:
(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 impose the following terms and conditions on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register of the College until such time as they are fulfilled:
(i) prior to any return to a teaching position or other position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete, at his own expense, a course of instruction, pre-approved by the Registrar, in positive discipline strategies and classroom management;
(ii) the Member shall deliver directly to the Registrar, within thirty (30) days of completion of the course at (i) above:
A. a written certificate from the course provider stating that he or she has received a copy of this Statement of Uncontested Facts and Plea of No Contest document, marked as an exhibit at this hearing, and a copy of the Decision and Reasons of the Discipline Committee;
B. proof of the Member’s successful completion of the course.
(c) The Committee 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, without the name of the Member.
REASONS FOR PENALTY DECISION
The Committee carefully considered and accepted the joint submission on penalty. The reprimand by his peers, and made on behalf of his profession, will act as a specific deterrent to the Member. It will reinforce to him the inappropriate nature of his actions and the importance of maintaining appropriate student/teacher boundaries. It provides notice that such behaviour will not be tolerated. The fact that the reprimand will remain on the Member’s certificate for a period of three years will serve as a further specific deterrent to the Member.
The Committee determined that enrolment in a course of instruction regarding positive discipline strategies and classroom management will reinforce to the Member the importance of reacting appropriately in difficult situations.
The Committee directed that there be publication in summary form, without the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession. The Committee accepted that the Member’s behaviour was at the lower end of the scale and was a single incident in a teaching career, and that over four (4) years have passed since the incident. The Member continues to be employed by his Board. Specific deterrence has been met by the oral reprimand. Further, the notation of the reprimand will remain on the Member’s certificate for three years.
The goal of remediation is achieved through the required course that will be taken by the Member. General deterrence and transparency are achieved through publication of the facts and through access to the College’s website where full decisions are posted.
The Committee is satisfied that the penalty is fitting in the circumstances and serves and protects the public interest.
Dated: May 24, 2013
______________________________ Christine Bellini, OCT
Chair, Discipline Panel ______________________________ Irene Dembek, OCT Member, Discipline Panel
Mel Greif
Member, Discipline Panel