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
Orlando Franco Fusaro, a member of the Ontario College of Teachers.
PANEL: Alexander (Sandy) Bass, OCT, Chair Irene Dembek, OCT
Mel Greif
BETWEEN: ) ) David Leonard,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,
) Law Clerk
- and – )
) Orlando Franco Fusaro was ) not present or represented
ORLANDO FRANCO FUSARO )
(CERTIFICATE #419370) )
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: December 12, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter was scheduled for hearing before a panel of the Discipline Committee (the “Committee”) on December 12, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1), dated July 4, 2013 was served on Orlando Franco Fusaro, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on August 7, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for December 12, 2013.
The Member was not in attendance at the hearing.
Counsel for the College submitted an Affidavit of Beverley Hodsdon, Law Clerk at McCarthy Tétrault, sworn December 10, 2013 (Exhibit 2) detailing communications she had with the Member with respect to the date of the hearing. The Committee was satisfied from the Affidavit that the Member was served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing. The hearing was scheduled to commence at 9:00 a.m. but commenced at 10:45 a.m. The Committee therefore proceeded to hear the matter in the absence of the Member.
THE ALLEGATIONS
The allegations against Orlando Franco Fusaro (the “Member”) in the Notice of Hearing are as follows:
IT IS ALLEGED that Orlando Franco Fusaro is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act (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 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);
(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) he contravened a law the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);
(g) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(h) 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
(i) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing on December 12, 2013, College Counsel sought to withdraw the allegation in (b) above, namely that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7). The Committee agrees that this allegation be withdrawn.
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Orlando Franco Fusaro (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Toronto Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Toronto, Ontario.
During the 2010-2011 academic year, the Member was the Grade [XXX] teacher of a [XXX] year old female student (the “Student”).
During the 2010-2011 academic year, the Member:
(a) engaged in an inappropriate personal relationship with the Student;
(b) engaged in an inappropriate physical and/or sexual relationship with the Student;
(c) exchanged emails of a personal and/or sexual nature with the Student.
- On June 14, 2012, the Member pleaded guilty to one count of sexual interference and was sentenced to 100 hours of community service, a ten (10) day intermittent jail sentence and three (3) years of probation.
MEMBER’S PLEA
As the Member was not present or represented by counsel, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.
THE EVIDENCE
College Counsel entered into evidence the following additional documents:
Registered Member Information (Exhibit 3); and
Brief of Court Documents - Her Majesty The Queen v. Orlando Franco Fusaro
(Exhibit 4).
The Brief of Court Documents (Exhibit 4) with respect to the criminal proceedings contained the following documents:
TAB
DOCUMENT
PAGE No.
A.
Certified Copy Court Information and Appearances and Recognizance of Bail
1-9
B.
Certified Copy of Probation Order June 14, 2012
1-4
C.
Certified Copy of Prohibition Order June 14, 2012
1-2
D.
Transcript of Court Proceedings and Reasons for Sentence before the Honourable Justice F. O’Donnell on June 14, 2012
1-39
The evidence presented in the Brief of Court Documents (Exhibit 4) confirmed that on or about June 14, 2012, the Member pleaded guilty to one count of sexual interference and was sentenced to 100 hours of community service, a ten (10) day intermittent jail sentence and three (3) years of probation.
SUBMISSIONS ON FINDING
College Counsel submitted the Brief of Court documents (Exhibit 4) in support of the allegations in the Notice of Hearing.
College Counsel made submissions that during the 2010-2011 school year the Member actively groomed a [XXX]-year female student who was [XXX]. This grooming behaviour included the following, moving the student’s desk next to his during class time, revealing personal aspects of his domestic relationship, engaging in an extensive (hundreds) e-mail exchanges of a personal and sexual nature, including expressions of love, comments about the student’s physical attributes and how sexy they were and including comments about undergarments. The Member’s behaviour, e-mails, and attitude continued to escalate in a sexual nature towards the student throughout the school year. During a playful event in a park in June 2011, the Member grabbed the student with his right hand and pulled her tight against him with her buttocks into his crotch area. With his left hand, the Member grabbed the left side of her buttocks. This action resulted in the charge and conviction of sexual interference.
College Counsel submitted that the Member, by his actions with the student engaged in conduct unbecoming that would be regarded as disgraceful, dishonourable and unprofessional and submitted that there was sufficient evidence to warrant a finding of professional misconduct under all the heads of misconduct alleged in the Notice of Hearing.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Orlando Franco Fusaro committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19).
The Committee further finds that the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.
REASONS FOR DECISION
The Committee accepts as fact, as detailed in the Brief of Court Documents contained within Exhibit 4, that on June 14, 2012, the Member pleaded guilty to one count of sexual interference and was sentenced to 100 hours of community service, a ten (10) day intermittent jail sentence and three (3) years of probation.
The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the Committee to accept a certificate of conviction as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Member has not appealed the conviction or the sentence.
The Member engaged in an inappropriate personal, physical and/or sexual relationship and exchanged e-mails of a personal and/or sexual nature with a [XXX] year old student. As a result of this conduct the member pleaded guilty to sexual interference and was sentenced to 100 hours of community service, a ten (10) day intermittent jail sentence and three (3) years of probation.
The Committee finds that the Member’s actions and resultant criminal conviction for sexual interference of the victim constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5),1(7.1),1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19) and further that the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.
SUBMISSIONS ON PENALTY
College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration, and publication with name was the appropriate penalty for misconduct of this nature. The Member has exhibited such an egregious breach of trust that he has forfeited the right to be a member of the teaching profession. Revocation is the only way to ensure that this Member is removed from a position of trust and therefore will be unable to ever engage in this conduct again. Revocation sends a message to the public and the teaching profession that this kind of behaviour will not be tolerated.
PENALTY DECISION
The Committee makes the following order as to penalty:
a) The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and
b) There shall 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 engaged in an inappropriate physical and sexual relationship with a [XXX] year old [XXX], who was one of his students. He was subsequently convicted of one count of sexual interference.
The Committee concurs with the submissions of College Counsel on penalty that the Member’s certificate must be revoked and the findings and order be published, in summary with the name of the Member.
The Committee finds that the Member engaged in reprehensible conduct. The Member abused the public trust in a disgraceful manner and has forfeited the privilege of holding a teaching certificate. Revocation is the appropriate penalty and serves as both a specific and general deterrent. Removing this Member from the teaching profession protects students and sustains public confidence in the profession. Publication with name advises the profession that misconduct of this severity will result in the most serious penalty.
The Committee is satisfied that the finding and penalty protect the public interest and uphold the standards of the teaching profession.
Dated: December 12, 2013
______________________________ Alexander (Sandy) Bass, OCT
Chair, Discipline Panel ______________________________ Irene Dembek, OCT Member, Discipline Panel
Mel Greif
Member, Discipline Panel