Ontario College of Teachers v. Mukts, 2013 ONOCT 72

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mukts, 2013 ONOCT 72

Date: 2013-09-30

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

Peter Eriks Mukts, OCT, Member of the Ontario College of Teachers.

PANEL: Alexander (Sandy) Bass, OCT, Chair

Louis Sloan, OCT

Pauline Smart

BETWEEN: ) ) Martin Zatovkanuk,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers )

• and – )

) Susan Luft,

PETER ERIKS MUKTS ) Ontario Secondary School Teachers’

(CERTIFICATE #231952) ) Federation,

) for Peter Eriks Mukts

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: September 30, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 30, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

Peter Eriks Mukts (the “Member”) was in attendance at the hearing.

A Notice of Hearing dated October 25, 2012 was served on the Member, requesting attendance before the Discipline Committee of the Ontario College of Teachers on November 8, 2012 to set a date for a hearing and specifying the charges. The hearing was subsequently set for September 30, 2013.

THE ALLEGATIONS

The allegations in the Notice of Hearing (Exhibit 1), dated October 25, 2012 are as follows:

IT IS ALLEGED that Peter Eriks Mukts is guilty of professional misconduct and/or is incompetent 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 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 or students 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 subsection 264(1) 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 September 30, 2013, College Counsel sought to withdraw the allegation of professional misconduct in paragraphs (c) in the Notice of Hearing, namely that the Member abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1). The Committee agrees that this allegation shall be withdrawn.

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that subject to ratification by the Committee, agreement had been reached on the facts and introduced a Memorandum of Agreement (“MOA”), (Exhibit 3) which provides as follows:

Agreed Statement of Facts

The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.

1. On September 14, 2011, the College received a letter of notification, dated September 7, 2011, from the Peel District School Board (the “Board”), regarding Peter Eriks Mukts, a [XXX] teacher at [XXX] School (the “School”) with the Board, pursuant to its obligations under section 43.3 of the Ontario College of Teachers Act, 1996.

2. Peter Eriks Mukts is a member of the College in good standing.

3. On March 25, 2009, Board and School administration held a meeting with the Member regarding allegations of inappropriate comments he made to students. On February 9, 2009, he asked the student “why are you wearing your pants like that? Are you trying to look like the black kids?” In his response to the present complaint, the Member stated that he made the comment referring to the student’s attempts to fit in with a peer-group.

4. During the meeting of March 25, 2009, the Member also conceded that he “must have” called a student a “low life” or “idiot” on March 10, 2009. The Member further admitted to having accused the student of being unable to spell the word “spare” and to calling him a “dick” in front of other students. The Member’s response provides the context of this exchange, in particular that the student was a stranger to the classroom, was interrupting the lesson in progress, and was belligerent in his manner.

5. On March 30, 2009, a letter of discipline was issued to the Member in regard to the aforementioned incidents, and he was required to undergo sensitivity training regarding the importance of respectful interactions. The Member completed this training in April 2009.

6. On June 30, 2011, Board and School administration held a meeting with the Member to review the appropriateness of the Member’s behaviour in the classroom, following reports of concern by students in the class. In particular, the Member was alleged to have:

a) referred to students as “idiots” and used the “f” word;

b) made disparaging comments about students’ weight, such as “Let’s see who is fatter” and “tub of lard”;

c) placed bets on the length of time one student would require before returning from the washroom, promising extra marks to the student who guessed most accurately;

d) told students that because his wife swears at him, he yells at them in turn;

e) yelled at students when they were not listening to him during a lesson;

f) walked out of the classroom in frustration in order to “cool down”;

g) thrown chalk and/or pencils at students when he was upset at them;

h) told students that he did not care if they failed as he gets a raise every year; and

i) shared students’ marks publically in class and made comments such as, “This person is not going to go anywhere”.

7. During the June 30, 2011 meeting and in his response to the Complaint, the Member responded to the allegations as follows:

a) He may have used the word “idiots” as a “motivational method” in conveying “surprised dismay” when a student did not understand something He denies using the f-word;

b) As a joke, he may have called a student a “tub of lard” and may have asked a student “Let’s see who is fatter,” in comparison with himself;

c) He took bets with his classes on the length of time students would take to go to the washroom and promised extra marks to the student who would most closely guess the time of return. The Member said he never actually gave the marks and meant it as a joke;

d) As a “motivational tool”, he told students he did not care if they failed because he received a raise every year, as a way of conveying that students must be responsible for their own success;

e) He walked out of the class in frustration in order to cool down, but not for five or six minutes as students had alleged;

f) He yelled at students when they were talking and not listening to him while he was teaching;

g) He told students that his wife controlled him and yelled at him;

h) He denied saying something to the effect “this person is not going anywhere” when he read out marks to the class; and

i) He denied slamming the door and throwing chalk and/or pencils at the students when he was upset, but admits to having throwing chalk or a pencil into the wastepaper basket to get the attention of the students

8. On July 6, 2011, a letter of discipline was issued to the Member regarding this matter.

9. On October 28, 2011, the Member attended a Classroom Management course and a Boundaries course in order to reflect upon the issues raised in this complaint and to improve his communication and classroom management accordingly.

10. The Member has provided confirmation of successful completion of the above-noted courses to the College.

PLEA OF NO CONTEST

11. By this document, the Member admits, for the purpose of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 10 above.

12. The Member voluntarily admits the above particulars and understands that by doing so, he is waiving the right to require the College to prove the case against him and the right to a contested hearing.

13. The member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under the protection of the Evidence Act, R.S.O 1990, Chapter 12, 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.

Joint Submission on Resolution

The parties agree to resolve the matter as follows:

14. the Member agrees and understands that upon ratification of this MOA, the Discipline Committee shall find him guilty of professional misconduct;

15. the Member shall 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 reprimand shall be delivered at the offices of the College located at 101 Bloor Street West, Toronto, Ontario;

16. in light of the fact that the Member has completed a Classroom Management course and a Boundaries course, the College will not require that the Member take any further courses with respect to the allegations contained in the complaint initiated by the Registrar on March 14, 2012;

17. the Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the public register maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996;

18. the Member agrees and understands that the College shall publish a summary of the complaint and its resolution as contained in this MOA. Such publication shall be made in the College’s official publication, Professionally Speaking/Pour parler profession, on the College web site, and in any other manner the Registrar and Chief Executive Officer deems appropriate. The Committee shall decide whether or not the Member’s name will be included in the summary;

19. the Member agrees and understands that upon ratification of this MOA, the College shall make the Decision of the Discipline Committee, available for review by the public in the College’s Margaret Wilson Library, on the College’s website and in any other forum the Registrar and Chief Executive Officer deems appropriate;

20. the Member agrees and understands that upon ratification of this MOA, the College shall submit a copy of the Decision and Reasons of the Discipline Committee to Quicklaw, an online legal database;

21. the Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the plea of no contest will be accepted, the finding of guilt will be made, and the penalty will be imposed;

22. the parties agree and understand that if any phrase or paragraph of this MOA is deemed null and void, the MOA shall be read as though the phrase or paragraph was stricken from the MOA and the amended MOA shall remain in force and effect;

23. the Member agrees and understands that this MOA is the entire agreement between him and the College and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA;

24. the parties agree and undertake that upon ratification of this MOA, there shall be no further action taken, no appeal to any forum, and no application for judicial review of the terms of the MOA; and,

25. each party may sign a separate copy of this MOA which, when so signed and delivered, shall be an original copy even though not signed by the other parties. All such separately signed copies shall together constitute evidence of all parties’ consent to be bound by this agreement.

DECISION

Having examined the Exhibits filed, and based on the Memorandum of Agreement, the plea of no contest, and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the Memorandum of Agreement. The Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Peter Eriks Mukts committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Committee accepts the Member’s plea of no contest and the agreed facts contained in the Memorandum of Agreement (Exhibit 3).

The Member admitted to making inappropriate comments to students in his classroom which included referring to students as “idiots”, “lowlife”, and “tub of lard”. The Member also admitted to asking students “why are you wearing your pants like that? Are you trying to look like the black kids?” and “Let’s see who is fatter”. The Member shared student marks publicly in class and made comments such as “this person is not going to go anywhere”.

The Member further admitted to placing bets on the length of time one student would require before returning from the washroom and promising extra marks to the student who guessed most accurately. The Member yelled at students when they were not listening to him during a lesson and at times, walked out of the classroom in frustration, in order to “cool down”. The Member threw chalk and pencils, in class, when he was upset. The Member expressed to students that he did not care if they failed as he received a raise every year.

The Committee finds that the Member’s actions amount to professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

SUBMISSIONS RE: PUBLICATION

Counsel for the College referred the Committee to Recommendation 33 of the LeSage report, which calls for publication with name in every instance. Counsel for the College submitted that the Member made many comments over many years for which he received two disciplinary letters. Counsel for College stated that this was an appropriate case for publication with the Member’s name as it would serve as a specific deterrent to the Member and a general deterrent to the membership at large.

Counsel for the Member noted that Recommendation 33 was just that, a recommendation. Counsel emphasized that the Committee still has the discretion to make an order with respect to publication pursuant to section 30, subsection 5, paragraph 3 of the Act. It was stated that there is no further value in publishing with the Member’s name as it would neither serve as a specific or general deterrent. Counsel submitted that transparency and the public interest are ensured by other aspects of the penalty. To illustrate this point, Counsel submitted that the MOA and Reasons for Decision would be available for review by the public in the College library, on the College website and on Quicklaw, an online legal database. In addition, a notation would appear on the Member’s Certificate, located on the Public Register of the College, detailing the penalty.

Counsel for the Member asked the Committee to give additional consideration to the following factors:

1. the Member has been retired from the profession since 2012 and therefore the risk of repetition is non-existent at this point;
2. the incidents occurred at the end of the Member’s thirty-five (35) year teaching career;
3. the Member has not previously appeared before the Committee;
4. the incidents are at the lower end of the spectrum;
5. the Member voluntarily attended boundaries and classroom management courses; and
6. the Member’s co-operation with the hearing process.

Counsel provided the Committee with a Book of Authorities which contained case law outlining the three main factors to consider when determining the issue of publication: General Deterrence, Specific Deterrence and whether the penalty is appropriate given all of the circumstances.

Counsel for the Member concluded by stating that publication with the Member’s name would be unnecessarily punitive and does nothing to further the goals of the College.

Counsel for the College responded by pointing out that had this been an isolated event, it might have warranted publication without name. However, the facts of this case show that a letter of discipline was delivered to the Member in 2009, following which he received sensitivity training. Then in 2011, more incidents occurred and the Member received another letter of discipline. Counsel for the College submitted that some of the cases provided by Counsel for the Member were older cases which reflected a different mentality or way of thinking about publication. Counsel for the College concluded by stating the current landscape of the College is to strive for greater transparency by publishing cases with the Member’s name.

PENALTY DECISION

The Committee accepts the Joint Submission on Resolution and makes the following order:

1. The Member is 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.

2. Pursuant to paragraph 3 of subsection 5 of section 30 of the Ontario College of Teachers Act, the findings and Order of the Committee shall be published in summary, without the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee carefully considered and accepted the Joint Submission on Resolution. The Committee finds that the nature of the Member’s misconduct is at the lower end of the scale. A reprimand is the appropriate penalty in this case as it serves as both a specific and general deterrent. The reprimand, by his peers, will inform the Member that his conduct was unacceptable and inappropriate while reinforcing the importance of maintaining the highest standards of the profession. The fact that the notation of the reprimand will remain on the Member’s Certificate of Qualification and Registration for a period of three (3) years will serve as both a specific deterrent, as well as a general deterrent to the other members of the profession. The profession will be made aware that similar conduct is not acceptable and will not be tolerated.

The Committee accepts the submissions on publication without name made by Counsel for the Member. The Committee finds that the risk of repetition is minimized as the Member has been retired from the profession since 2012. The Committee considered the following mitigating factors: the Member’s co-operation and admissions made through the MOA, the fact that this was the Member’s first appearance before the Committee in his thirty-five (35) year career, and the Member’s voluntary completion of courses on boundaries and classroom management. Given the circumstances, the Committee finds that publication with name would be unnecessarily punitive to the Member. In this case, the Committee agrees that there is no further deterrence value in publishing the Member’s name.

The Committee is satisfied that the penalty imposed is appropriate in the circumstances and serves to protect the public interest.

Date: September 30, 2013

Alexander (Sandy) Bass, OCT

Chair, Discipline Panel

______________________________ Louis Sloan, OCT

Member, Discipline Panel ______________________________

Pauline Smart

Member, Discipline Panel