DISCIPLINE COMMITTEE
OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Foster, 2013 ONOCT 23
Date: 2013-03-18
IN THE MATTER OF the Ontario College of Teachers Act, 1996, S.O. 1996,
c. 12 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF discipline proceedings against
Thomas Adrian Foster, OCT, a member of the Ontario College of Teachers.
PANEL: Christine Bellini, OCT, Chair Stephanie Achkewich, OCT
John Tucker
BETWEEN: )
) Larissa Moscu,
) McCarthy Tétrault LLP,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,
) assisted by Annie Lacroix,
) Litigation Paraprofessional
- and - )
) Thomas Adrian Foster,
THOMAS ADRIAN FOSTER ) on his own behalf
(CERTIFICATE #437682) )
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: March 18, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 18, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated December 1, 2011 was served on Thomas Adrian Foster, requesting his presence on December 19, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for March 18, 2013.
Thomas Adrian Foster was in attendance, acting on his own behalf.
THE ALLEGATIONS
The allegations against Thomas Adrian Foster in the Notice of Hearing, (Exhibit 1) dated December 1, 2011, are as follows:
IT IS ALLEGED that Thomas Adrian Foster 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, 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 subsection 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).
□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 3), which provides as follows:
STATEMENT OF UNCONTESTED FACTS
Thomas Adrian Foster (the “Member”) is a member of the Ontario College of Teachers. Attached to Exhibit 3 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 the Toronto District School Board (the “Board”) and taught at a number of schools of the Board, and specifically, [XXX] School (“[XXX]”) and [XXX] School (“[XXX]”), both in Toronto, Ontario.
During the academic year of September 2003 to June 2004, and while teaching a split [XXX] class at [XXX] , the Member:
(a) on one or more occasions when male Student #1 was talking to another student, “squished” together Student #1’s arms and carried Student #1 out of the classroom with his feet off the ground;
(b) when male Student #2 was talking in class, turned Student #2 upside down with his feet in the air and his head to the ground, and carried Student #2 into the hallway;
(c) grabbed male Student #3 by the arm and when Student #3 got away from his grip, grabbed Student #3 by his leg and pulled Student #3 towards the doorway;
(d) while rough-housing with male students during a history class in mid-November 2003, picked up male Student #4 and held him upside down with his feet in the air and his head towards the ground;
(e) during announcements on one occasion, took a magazine that male Student #5 was looking at and “whipped” it against the wall;
(f) on one or more occasions when male Student #6 was talking, grabbed Student #6 under the arms, lifted him off the ground, and put him in the hallway;
(g) grabbed male Student #7 by the foot, lifted him upside down, placed Student #7 on his shoulder and spun Student #7 around;
(h) lifted up male Student #8 on one occasion when Student #8 was near to the Grade [XXX] desks, and on another occasion when Student #8 was talking in library class, shut off the computer monitor being used by Student #8, lifted Student #8 up under his arms with his feet off the ground, and put Student #8 by the door.
The Member received a ten (10) day suspension without pay in April 2004, relating to the above eight (8) incidents of physical mistreatment of male students. Attached to Exhibit 3 and [located at Tab “B”] is a copy of the letter dated April 19, 2004 from the Executive Superintendent for the Superintendent of Education to the Member.
The Member was directed to attend an ETFO Planning and Programming Course which he completed (April 22 – 24, 2004), and was removed from [XXX] School. Attached to Exhibit 3 and [located at Tab “C”] is a copy of the Certificate of Professional Activity – EFTO Planning and Programming Course dated April 22 – 24, 2004.
From September 2004 through to and including August 2006, while teaching at [XXX] , the Member:
(a) during the 2004-2005 school year, told a student or students about discussions that occurred between staff in the staff room when staff spoke openly about losing their virginity;
(b) communicated confidential information regarding the learning profile of a student to the student’s parent. This information, which had been shared with the Member by a colleague, was divulged to the parent without the colleague’s prior consent and without the colleague being present;
(c) told students to “shut up”;
(d) told students they would “fail their asses off in university”;
(e) used the word “bitch” to describe the actions of a character in a novel which the class was studying;
(f) referred to a student as “moron” when talking with the student;
(g) grabbed a student’s chair and moved the chair to another location in the classroom, and physically touched the student’s shoulder to direct him to a seat;
(h) jumped over a chair and grabbed a student in order to prevent the student from leaving the classroom;
(i) threw erasers in students’ direction to get their attention;
(j) smashed a miniature pool table in front of students in the classroom;
(k) caused a male student to cry in class when he turned the student around, put both of his hands on the student and yelled in the student’s face “You are always unprepared”, when the student did not have a pencil;
(l) pulled chairs out from under male students;
(m) physically turned a male student around, placed both of his hands on the student’s shoulders and pushed the student down into his seat as the student was returning to his seat;
(n) said to a student – “Can you help the less fortunate and share your book”, when a student failed to bring his book to class;
(o) requested that a student or students get him a coffee;
(p) sounded a whistle in class to gain students’ attention.
The Member was suspended without pay for two days on April 5 and 6, 2006. Attached to Exhibit 3 and [located at Tab “D”] is a copy of the letter dated April 4, 2006 from the Principal of [XXX] to the Member.
On or about August 30, 2006, the Member’s employment with the Board was terminated for cause.
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 8 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 3 and 6 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).
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 him 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 without 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 and of the Fitness to Practise 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.
JOINT SUBMISSION ON PENALTY 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 directs:
(a) 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”);
(b) the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;
(c) 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, conditions or limitations to be recorded on the Register of the College until such time as they are fulfilled:
(i) that the Member shall, at least thirty (30) days before commencing work as a teacher at any public or private school, notify the Registrar of the Ontario College of Teachers (the “Registrar”) of the date on which he intends to return to work as a teacher and the name of his employer;
(ii) thirty (30) days before commencing work as a teacher at any public or private school, the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding anger management, classroom management and effective student discipline; and
(iii) within thirty (30) days of his completion of the course outlined in (ii) above, shall provide to the Registrar a written certificate from the course provider stating:
A. that he or she has reviewed a copy of the Statement of Uncontested 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) 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 RE: PUBLICATION
Counsel for the College submitted that the name of the Member be published in the official publication of the College Professionally Speaking/Pour Parler Profession. Counsel stated that publication with name acts as a specific deterrent to the Member, who engaged in ongoing physical mistreatment of students, repeated verbal abuse of students and an inappropriate display of anger/aggression in the classroom. The Member repeatedly engaged in these behaviours over a long period of time. Secondly, publication acts as a general deterrent to the members of the profession in that this type of behaviour will not be tolerated. Third, publication ensures transparency of the process and is in the public interest. It illustrates that the College takes matters of professional misconduct seriously and will result in serious consequences.
College Counsel provided two previous cases of the Discipline Committee, one of which outlined the penalty received for verbal abuse of students, which included publication of the Member’s name. The second case dealt with inappropriate physical discipline of students wherein the penalty was similar to this case, i.e. suspension, reprimand, completion of a course and publication of the Member’s name.
The Member requested that his name not be published. He stated that he did not plan to return to the profession and that publication with name is no longer a specific deterrent. He pointed out that the events occurred 10 years ago and publication after the fact is not warranted.
DECISION
Having considered the evidence and onus and standard of proof, and the submissions made by College Counsel and by the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Thomas Adrian Foster committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18 - unprofessional) and 1(19).
REASONS FOR DECISION
During the academic year 2003 and 2004, the Member engaged in eight (8) incidents of physical mistreatment of male students. The Member received a ten (10) day suspension without pay and was administratively placed to another school. The Member was also directed to attend an ETFO Planning and Programming Course, which he completed.
From September 2004 through to and including August 2006, the Member engaged in sixteen (16) incidents of physical and verbal abuse as well as inappropriate classroom behaviour, such as throwing erasers at students, smashing a miniature pool table in front of students. On or about August 30, 2006 the Member’s employment with the Board was terminated for cause.
The Member acknowledged that the Uncontested Facts referred to in paragraphs 3 and 6 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 accepted that the facts in the Statement of Uncontested Facts and Plea of No Contest (Exhibit 3) amount to professional misconduct as pleaded to by the Member.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months commencing on March 18, 2013 and the fact of the suspension is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
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;
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) that the Member shall, at least thirty (30) days before commencing work as a teacher at any public or private school, notify the Registrar of the Ontario College of Teachers (the “Registrar”) of the date on which he intends to return to work as a teacher and the name of his employer;
(ii) thirty (30) days before commencing work as a teacher at any public or private school, the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding anger management, classroom management and effective student discipline; and
(iii) within thirty (30) days of his completion of the course outlined in (ii) above, shall provide to the Registrar a written certificate from the course provider stating:
A. that he or she has reviewed a copy of the Statement of Uncontested 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.
- Pursuant to subsection 30 (5) paragraph 3 of the Ontario College of Teachers Act, the findings and order of the Committee shall be published in summary, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Committee found that the Member engaged in professional misconduct by engaging in inappropriate physical discipline of students, during the period from September 2003 to June 2004. Further, from September 2004 through to and including August 2006, the Member engaged in sixteen (16) incidents of physical and verbal abuse as well as inappropriate classroom behaviour.
The Committee noted that despite the fact that the Member had previously been suspended by his employer, had taken a course entitled Planning and Programming, including classroom management and professionalism, he continued to physically and verbally abuse students. Further, the Member was terminated from his employment in August 2006 for cause.
Considering the seriousness of the Member’s behaviour and his pattern of ongoing physical and verbal mistreatment of students, the Committee agreed with the Joint Submission on Penalty that a serious sanction was required, including a suspension of three months, a course in anger management, classroom management and effective student discipline, and a reprimand.
The reprimand by his peers and on behalf of the profession acts as a specific deterrent to the Member. The fact of the reprimand will remain on the Member’s certificate for a period of three years and will serve as a general deterrent to the profession.
The Committee expects that the course in anger management, classroom management and effective student discipline will assist to remediate the Member.
The Committee determined that publication in summary form, with the name of the Member was appropriate in these circumstances. The Committee found that the Member’s long term and ongoing physical and verbal abuse of students was egregious, and therefore the penalty imposed warranted publication of the Member’s name. Publication with name ensures transparency of the process and assures the public that the College takes these matters seriously. Publication also acts as a specific deterrent to the Member and provides general deterrence to members of the profession.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: March 18, 2013
Christine Bellini, OCT
Chair, Discipline Panel
Stefanie Achkewich, OCT
Member, Discipline Panel
John Tucker
Member, Discipline Panel