Ontario College of Teachers v. Ferris, 2013 ONOCT 19

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Ferris, 2013 ONOCT 19

Date: 2013-01-28

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

Jason James Ferris, OCT, a member of the Ontario College of Teachers.

PANEL: Alexander (Sandy) Bass, OCT, Chair Stefanie Achkewich, OCT

John Tucker

BETWEEN: ) Caroline Zayid,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Litigation Paraprofessional

• and – )

JASON JAMES FERRIS ) Robyn White,

(CERTIFICATE #436464) ) Cavalluzzo Shilton McIntyre &

) Cornish LLP

) for Jason James Ferris

) Erica Richler

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: January 28, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on January 28, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing, dated February 2, 2012 was served on Jason James Ferris, requesting his presence on February 22, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 28, 2013.

Jason James Ferris was in attendance and was represented by counsel.

THE ALLEGATIONS

The allegations against Jason James Ferris in the Notice of Hearing, (Exhibit 1) dated February 2, 2012, are as follows:

IT IS ALLEGED that Jason James Ferris is guilty of professional misconduct as defined in subsection 30(2) of 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 released and/or disclosed information about a student or students to a person or persons other than a student, contrary to Ontario Regulation 437/97, subsection 1(6);

(c) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(d) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(e) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(f) 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 made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);

(g) 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

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

At the hearing on January 28, 2013, College Counsel sought to withdraw the allegations of professional misconduct in paragraphs (b) and (d) in the Notice of Hearing, namely that the Member released and/or disclosed information about a student or students to a person or persons other than the student, contrary to Ontario Regulation 437/97, subsection 1(6) and that he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1). The Committee agrees that these allegations 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

1. Jason James Ferris (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit 2, Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed by the Trillium Lakelands District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. During the 2008-2009 academic year, the Student was a [XXX] year old, Grade [XXX] female student of the Member.

4. The Member engaged in a Facebook conversation with the Student that took place on or about February 14, 2009. Attached and marked as Exhibit 2, Tab “B” is the Facebook conversation between the Member and the Student. According to the Student, when the Member used the word “Fobi” during the conversation, it meant “fuck off bitch”.

5. Further during the Facebook conversation between the Member and the Student, there is also reference to a bruise. Moreover, the Student gave the Member a “horsebite” on one occasion, which meant that she pinched the Member underneath his arm.

6. The Member took the Student out for lunch. The Member was leaving the School to go to a restaurant and the Student asked him to bring her something back for lunch. The Member responded by offering to take the Student to lunch with him in his car and ultimately bought her lunch. In addition, the Member did not seek permission to take the Student with him nor did he have her follow the proper sign out policy with the office.

7. Further, during the 2008-2009 academic year, the Member used inappropriate dialogue with current and/or former students on the internet site Facebook. In addition, the Member was tagged in photos posted by others on Facebook and the Member commented on photos which were posted by others on Facebook. Attached and marked as Exhibit 2, Tab “C” are Facebook posts. Examples of the dialogue are:

a) “…don’t try to F with my knowledge grasshopper”;

b) “no, its about violence and I know everything. Take you [sic] place below me and stay there. I mean it’s not a bad place. You’re quite brilliant for what you have. You absolutely get the most bang for your buck cupcake”;

c) “a volleyball moron…it’s from Madagascar”;

d) “whatever loser”.

8. The Board reported the Member to the Family, Youth and Child Services of Muskoka. By letter dated June 5, 2009, the allegations of there being a risk that a child is likely to have been emotionally harmed resulting from the Member’s action or inaction and/or inadequate response was verified. Further, it was noted by the Family, Youth and Child Services of Muskoka that the “verification comes as a result of the Member’s inappropriate conduct with students in and out of the classroom. It was clear from the evidence that the Member exploited his position of trust as a teacher by engaging students socially on Facebook. The nature and time of some of the entries were very questionable and formed the basis of the verification”. Attached and marked as Exhibit 2, Tab “D” is the letter from Family, Youth and Child Services of Muskoka dated June 5, 2009.

9. The Member misled Board officials whereby the Member stated that he had removed all students from his Facebook friends list. The Board obtained information from the Facebook website and the Member’s Facebook page that he did not remove all students from his friends lists a few weeks earlier as he had stated. The Member removed all students from his Facebook friends list and shut down his Facebook account following the March 24, 2009 meeting with the Board officials.

10. Furthermore, during the meeting with the Board officials held on March 24, 2009, the Member stated that he had spoken to students on his cell phone, but insisted that the content of the communications were strictly related to school and not social in nature. The Board then obtained information that the Member had exchanged text messages with students that were social in nature.

11. The Member resigned from the Board on or around September 9, 2010.

PLEA OF NO CONTEST

12. 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”).

13. The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 4 to 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(7.2), 1(15), 1(18-unprofessional) and 1(19).

14. 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;

f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

15. 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.

16. 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 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 Jason James Ferris committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 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 11 (the “Uncontested Facts”) of the Statement of Uncontested Facts, and Plea of No Contest document (Exhibit 2). The Member acknowledged that the Uncontested Facts referred to in paragraphs 4 to 10 above, constitute conduct which is professional misconduct and pled no contest to the allegations of professional misconduct.

Specifically, the Member admitted to engaging in many Facebook conversations with students. According to one student, when the Member used the word “Fobi” during the conversation, it meant “Fuck off bitch”. In addition, the Member took a student out to lunch with him in his car; the Member did not seek permission to take the student with him, nor did he have the student follow the proper sign-out policy with the office.

The Member misled Board officials whereby the Member stated that he had removed all students from his Facebook friends list. Furthermore, the Member stated that he had spoken to students on his cellphone insisting that the content of his communications were strictly related to school and not social in nature. The Board subsequently obtained information that the Member had exchanged text messages that were social in nature.

In light of the admissions made by the Member contained within the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), the Committee found that the Member committed the acts of professional misconduct as alleged.

The Committee found these actions to be unprofessional and agreed with the submissions of the College and the Member.

JOINT SUBMISSIONS ON PENALTY

Through a Joint Submission on Penalty document (Exhibit 3), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Committee in this matter would be a reprimand, a two month suspension, terms, conditions and limitations on the Member’s Certificate of Qualification and Registration requiring the successful completion of one course dealing with appropriate boundaries and boundary violation issues. The parties had not agreed on whether or not the Member’s name should be published in the official publication of the College, Professionally Speaking/Pour parler profession and made submissions on that issue.

SUBMISSIONS ON PUBLICATION

The Committee received submissions from College Counsel and Counsel for the Member with respect to publication of the Member’s name in Professionally Speaking/Pour parler profession.

College Counsel argued that the seriousness of the Member’s unprofessional conduct warrants the publication of his name to act as both a specific and general deterrent as members of the profession take this aspect of penalty very seriously.

College Counsel provided one case for review by the Committee to support the argument for publication of the Member’s name. With some minor differences, these cases were similar and resulting in an identical penalty as proposed, along with publication of the Member’s name.

Counsel for the Member argued that the case provided had a sexual element to it and that this case did not. She further argued that it was the responsibility of the Committee in rendering the decision on penalty, to balance the Member’s right to privacy with the public’s expectations of full transparency.

Counsel further submitted that the Member wants to re-enter the teaching profession. Publication of the Member’s name would have a negative impact on his career.

PENALTY

The Committee makes the following order as to penalty:

1. The Committee directs that the Member 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”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on January 28, 2013 and the fact of the suspension is to be recorded on the Register;

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

(i) 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 violation issues;

(ii) within 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:

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

B. the Member has successfully completed the course.

4. The Committee directs that there be publication of the findings and Order of the Committee in summary form, with the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee determined that the reprimand is an appropriate penalty to remind the Member of his professional responsibilities and the need to maintain appropriate boundaries in order to uphold the standards of the profession. The reprimand will serve as a specific deterrent to the Member against future transgressions.

The Committee determined that the suspension is appropriate based on the serious nature of the Member’s conduct. The suspension serves as a specific deterrent as it reinforces to the Member the gravity of his misconduct. It also serves as a general deterrent to the profession as it acts as a reminder that inappropriate communications with students is unacceptable and will result in serious sanctions. In addition, misleading Board officials regarding this behaviour must not be tolerated.

The imposition of terms, conditions or limitations on the Member’s Certificate of Qualification and Registration requiring the completion of a course in professional boundaries will provide the Member with an understanding of his professional responsibilities and will provide rehabilitative assistance to the Member in understanding why his conduct was inappropriate.

Publication of the findings and Order of the Committee, in summary, with the name of the Member, in Professionally Speaking/Pour parler profession provides both a specific deterrent to the Member and a general deterrent to the profession while advising and serving the public interest and fostering transparency of the Discipline process. It assures the public that the College will not tolerate such behaviour and will ensure that this type of misconduct is dealt with seriously.

Given the seriousness of the Member’s misconduct, the Committee found that inclusion of the Member’s name is warranted to ensure full transparency of the Discipline process. The Member’s right to privacy does not supersede this obligation in this case.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: January 28, 2013

Alexander (Sandy) Bass, OCT

Chair, Discipline Panel

______________________________ Stefanie Achkewich, OCT

Member, Discipline Panel

John Tucker

Member, Discipline Panel