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
Danny Schnabel, a member of the Ontario College of Teachers.
PANEL: John Tucker, Chair Alexander (Sandy) Bass, OCT Annilee Jarvis, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Caroline Zayid, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Litigation Paraprofessional
- and –
DANNY SCHNABEL (CERTIFICATE #210962) Danny Schnabel was not present or represented
Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: October 24, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 24, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated March 13, 2013 was served on Danny Schnabel, requesting his presence on April 18, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 24, 2013.
Danny Schnabel was not in attendance.
THE ALLEGATIONS
The allegations against Danny Schnabel in the Notice of Hearing, (Exhibit 1) dated March 13, 2013, are as follows:
IT IS ALLEGED that Danny Schnabel is guilty of professional misconduct as defined in subsection 30(2) 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) 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;
(d) 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);
(e) 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
(f) 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 with respect to some facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:
AGREED STATEMENT OF FACTS
Danny Schnabel (the “Member”) was at all material times, 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.
At all material times, the Member was employed by the York Region District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.
At all material times, the Member was also an instructor in an enriched [XXX] program for [XXX]-area [XXX] school students.
The Student was a [XXX] year old female student in this program, whose [XXX] birthday was in July 2011.
On or about November 7, 2011, the Member advised the Principal of the School about a concern that he had regarding a potential threat from the parent of the Student. The parent of the Student was angry because they had been advised that the Member and the Student had seen each other outside of the classroom setting.
Subsequently, the Principal advised the Board of the disclosure made by the Member to him.
The Member engaged in an inappropriate relationship with the Student in that he:
(a) commencing in June 2011, communicated electronically with the Student in a capacity outside the scope of the enriched [XXX] program;
(b) on one occasion, in July 2011, invited the Student to his home for dinner;
(c) during the period from September 2011 to November 2011, met alone with the Student at his home on a regular basis and approximately on a weekly basis;
(d) during the period commencing June 2011 to November 2011, took the Student in his car or by public transit to a movie at the [XXX], to the [XXX], to the [XXX], to the [XXX], to [XXX], to the [XXX], to [XXX], and to her family doctor’s office in [XXX].
- Furthermore, during the period commencing July 2011 to November 2011, the Member engaged in a relationship with the Student in which:
(a) he physically touched the Student;
(b) they kissed each other;
(c) they held each other.
Attached to Exhibit 2, at Tab “B” is a letter from the Superintendent of Schools of the Board to the Member dated December 2, 2011.
The Member resigned from the Board on or about December 9, 2011.
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 9 above (the “Agreed Facts”).
GUILTY PLEA
The Member hereby acknowledges that the Agreed Facts referred to in paragraphs 7 and 8 above, constitute conduct which is professional misconduct, and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18) and 1(19).
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 Agreed Statement of Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty 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 without the advice of legal counsel.
- In light of the agreed facts, circumstances and plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
As the Member entered a guilty plea to only four of the six allegations of professional misconduct contained within the Notice of Hearing (Exhibit 1), the Committee proceeded on the basis that the Member denied allegations (b) and (c) in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to these allegations. Specifically, the plea of not guilty was entered with respect to allegations that the Member:
b) abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2); and
c) 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.
College Counsel requested that the Committee make a guilty finding with respect to allegations (b) and (c) above, even though the Member did not specifically plead to these allegations. Counsel submitted an Affidavit of Daniela DeBartolo, Law Clerk, with McCarthy Tétrault LLP, sworn October 23, 2013 (Exhibit 4), which confirms that the Member was advised that as the parties had not reached an agreement on whether the Discipline Committee should make a finding under Ontario Regulation 437/97, subsections 1(7.2) and 17.3), section 1 and 40(1.1) of the Act, the College reserved the right to make findings under those subsections of the misconduct regulation. Ms. Bartolo wrote to the Member on September 5, 2013 and on September 13, 2013 and in both letters advised the Member: “…Counsel for the College will make submissions to the panel of the Discipline Committee that the facts agreed upon in the Agreed Statement of Facts constitutes psychological and emotional abuse of a student as well as sexual abuse of a student. You are entitled to make submissions to the contrary.”
At the hearing of this matter, College Counsel requested that the Committee make these additional findings on psychological and emotional abuse as well as sexual abuse of a student based on the evidence, i.e. the facts agreed to in the Agreed Statement of Facts. College Counsel’s position was that when a teacher embarks on a relationship with a student outside of the educational setting and engages in touching of a student, this is inappropriate conduct and amounts to psychological or emotional abuse. While the Member has not admitted a sexual relationship, Counsel submitted that the actual conduct amounts to sexual abuse as detailed in paragraphs 7 & 8 of the Agreed Statement of Facts. Counsel indicated that the Committee could logically infer or conclude that this conduct, i.e. communicating electronically for purposes other than educational, having dinner with the Student at his home, meeting on a weekly basis, having multiple outings outside of school hours, physically touching, kissing and holding each other amounted to emotional, psychological and sexual abuse. College Counsel further pointed out that the Member, although advised that he was entitled to make submissions to the contrary, had not actively chosen to do so.
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 Danny Schnabel committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
The Committee did not make a finding of professional misconduct against the Member as alleged, with respect to Ontario Regulation 437/97, subsections 1(7.2) and 1(7.3). Consequently, the Member was not found guilty of engaging in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act. Accordingly those allegations are dismissed.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 (the “Agreed Facts”) of the Agreed Statement of Facts, and Guilty Plea document (Exhibit 2). The Member acknowledged that the Agreed Facts referred to in paragraphs 7 and 8 above, constitute professional misconduct and pled guilty to the allegations of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
The Committee accepts the Member’s guilty plea and the facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) with regard to the allegations to which he pled guilty of professional misconduct.
The Member engaged in an inappropriate relationship with a [XXX] year old female student, who was in his enriched [XXX] program, from the approximate period of June to November 2011. The Member admitted to communicating electronically with the Student outside the scope of the enriched program. He had her to his home for dinner on one occasion and met alone regularly with the student at his home on a regular weekly basis, from September to November 2011. During the period commencing June 2011 to November 2011, the Member took the Student in his car or by public transit to movies, art galleries, the [XXX] and to the Student’s family doctor’s office. The Member further admits that during the period July 2011 to November 2011, the Member engaged in a relationship with the Student in which he physically touched the Student; they kissed each other and they held each other.
The Committee finds that this behaviour and the facts as agreed to in Exhibit 2 amount to professional misconduct as pled to by the Member.
The Committee finds that the College has not proven the allegations of professional misconduct with respect to Ontario Regulation 437/97, subsections 1(7.2), and 1(7.3) and therefore finds that the Member did not engage in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.
The Committee concurs with College Counsel and the Member, that the Member is guilty of professional misconduct. Engaging in, and encouraging, a personal relationship with a student is behaviour which is unprofessional and dishonourable, and is conduct unbecoming a Member of the profession. The Member abused his position of trust by allowing an academic relationship with the Student to become a personal relationship. The Member disregarded the professional boundaries through his misconduct. The Committee accepts submissions by Counsel as well as the Agreed Statement of Facts, and Guilty Plea which was submitted by both parties, as sufficient cause for the finding of professional misconduct.
Regarding allegations relating to Ontario Regulation 437/97, subsections 1(7.2), and 1(7.3), the Committee was unable to make a finding of professional misconduct. These allegations were disputed by the Member, and were not included in the Agreed Statement of Facts, and Guilty Plea. Clearly, the Agreed Statement of Facts, and Guilty Plea provided evidence of professional misconduct. The Committee did not agree that on its own, the Agreed Statement of Facts, and Guilty Plea provided sufficient evidence to support a finding of sexual abuse.
The Committee acknowledges that kissing and hugging constitute sexual abuse as defined in sections 1 and 40(1.1) of the Act. In the Agreed Statement of Facts, and Guilty Plea, the Member admits that kissing and hugging occurred. However, the Committee took very seriously the knowledge that the Member was neither present nor represented. There was no opportunity for the Committee to clarify the scope or frequency of physical contact between the Member and the Student. Nor was the Committee comfortable in accepting the suggestion by College Counsel, without additional evidence, that the intent of the Member was to have a sexual relationship with the Student.
The Committee accepts the evidence that Counsel for the College made diligent attempts to contact the Member and advise him that the College was advocating findings of misconduct on these disputed allegations based on information provided in the Agreed Statement of Facts. The College also advised him of his opportunity to make arguments to support his case, either in person or in writing (Exhibit 4, Affidavit of Daniela De Bartolo). However, there was no clear, cogent and convincing evidence provided to the Committee that the Member had received these communications. The Committee is not sufficiently confident that the Member understood that the facts which he admitted were also being used to support allegations to which he was in dispute. The Committee acknowledges that the Member did make a submission on the issue of penalty, so he may have been aware of other communications. Confirmation of this would have assisted the Committee in its decision on the disputed allegations.
Notwithstanding the disputed allegations, the Committee finds the Member guilty of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty document (Exhibit 5), College Counsel and the Member jointly submitted that the appropriate penalty in this matter would be that the Committee direct the Registrar to revoke the Certificate of Qualification and Registration of the Member immediately and 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 had not agreed on whether or not the Member’s name should be published and made submissions on that issue.
SUBMISSIONS ON PUBLICATION
The Committee received submissions from College Counsel and a letter from the Member (Exhibit 6) with respect to publication of the Member’s name in Professionally Speaking/Pour parler profession.
Counsel for the College submitted that the joint submission on penalty was revocation of the Member’s Certificate of Qualification and Registration, and that revocation was appropriate given the facts. She submitted that this was not a minor incident or isolated conduct. An inappropriate relationship with a [XXX]-year old student was a serious form of misconduct and it followed that publication with the Member’s name was appropriate. The relationship had continued over several months and involved several locations. Counsel for the College further submitted the Committee needed to take into account the need for specific and general deterrence and send a strong message to the public, by denouncing this type of conduct in the strongest terms.
The Committee received a letter from the Member, dated October 22, 2013 (Exhibit 6) requesting that his name not be published in Professionally Speaking. He indicated: “That magazine is noted for inspiring gossip, speculation and hyperbole.” The Member further stated in his letter: “Public humiliation is not an effective deterrent, and as a form of punishment would seem to me to be something we should all want to move beyond. Hence Article Five of the Universal Declaration of Human Rights: No one shall be subject to torture or cruel, inhuman or degrading treatment of punishment.”
PENALTY
The Committee makes the following order as to penalty:
The Committee directs the Registrar to revoke the Certificate of Qualification of the Member, which Certificate the Member is to immediately surrender to the Registrar; and
The Committee directs that there 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 DECISION
By the Member’s own admission, he engaged in an inappropriate relationship over a period of many months, with a [XXX] year old female student. This activity included electronic communications, visits to the Member’s home on a weekly basis, numerous outings to various locales with the student, either in the Member’s car or by public transportation. The relationship also involved physical touching, kissing and hugging each other. This conduct constitutes a serious violation of professional boundaries. It would appear that the misconduct stopped only when the Student’s parent made the Principal aware that the Member and the Student had been seeing each other outside of the classroom setting. This misconduct is grave. The Member has shown complete disregard for the standards of the profession through his behaviour. Developing a clandestine, personal relationship with a student is an abuse of the trust placed in the profession by the community at large. Parents anticipate that their children will be safe in an educational setting. The Member took advantage of this trust. The Committee accepts and concurs with the Joint Submission on Penalty that revocation of the Member’s certificate is the appropriate penalty in this case. It assures the public and the profession that misconduct of this nature is treated seriously.
The Committee finds there are compelling reasons to publish the Member’s name in Professionally Speaking/Pour parler profession. The Committee does not accept the Member’s written submission that publication of his name is excessive punishment. Publication of the findings and Order of the Committee, in summary, along with the name of the Member, identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication, in this case, acts as both a specific and general deterrent and informs the profession and the public that such conduct will not be tolerated and will result in the harshest penalty.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: November 26, 2013
John Tucker Chair, Discipline Panel
Alexander (Sandy) Bass, OCT Member, Discipline Panel
Annilee Jarvis, OCT Member, Discipline Panel