Ontario College of Teachers v Ward, 2013 ONOCT 93

DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Ward, 2013 ONOCT 93

Date: 2013-10-18

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 Randy Stuart Ward, a member of the Ontario College of Teachers.

PANEL: Danny Anckle, Chair

Alexander (Sandy) Bass, OCT

Pauline Smart

BETWEEN: )

) David Leonard,

) McCarthy Tétrault LLP,

) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

-and- )

) William Markle and

) W. Alejandro Munoz,

) Markle Reid Munoz LLP

) for Randy Stuart Ward

RANDY STUART WARD )

(CERTIFICATE #449418) )

) Marc Spector,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: September 16, 2013

DECISION, REASONS FOR DECISION AND ORDERS ON PENALTY

On June 3, 2013, the Discipline Committee (the “Committee”) rendered a written decision finding Randy Stuart Ward (the “Member”) guilty of professional misconduct.

In its written decision of June 3, 2013, the Committee found that based on the clear, cogent and convincing evidence presented during the four-day hearing, the Member committed acts of professional misconduct by:

a) breaching appropriate boundaries that must be maintained between students and teachers;

b) verbally abusing students by calling them “sexy”;

c) physically abusing students by hugging them and touching their buttocks;

d) psychologically and emotionally abusing students by making them feel uncomfortable to the point where they were compelled to report the incidents to the School’s youth worker;

e) failing to maintain the standards of the profession and, therefore not complying with section 264(1)(c) of the Education Act;

f) acting unprofessionally and engaging in conduct unbecoming a member of the profession by breaching teacher-student boundaries, physically touching students and referring to students as “sexy”, “beautiful” and “pretty”.

The Committee found that these facts supported a finding of professional misconduct pursuant to Ontario Regulation 437/97, being more particularly breaches of subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19). The Committee did not find that there was sufficient evidence to reach a finding of sexual abuse of a student contrary to Ontario Regulation 437/97, subsection 1(7.3) or as defined in section 1 and subsection 40(1.1) of the Ontario College of Teachers Act (the “Act”).

The Committee reconvened the hearing on September 16, 2013 to hear submissions on the issue of penalty.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the appropriate penalty in this case includes:

1. a reprimand and the fact of the reprimand be recorded on the Public Register of the College (“Public Register”);

2. a suspension for a period of three (3) months of the Member’s Certificate of Qualification and Registration and the fact of the suspension be recorded on the Public Register;

3. the imposition of the following terms, conditions and limitations on the Member’s Certificate, to remain on the Certificate until fulfillment:

i. the Member enroll in and complete, at his own expense, a boundaries course within three (3) months from the date of this Order; and

4. publication, including the name of the Member, in Professionally Speaking/pour parler professional.

College Counsel further submitted that the factual findings made by the Committee, in its June 3, 2013 decision, formed the foundation of the penalty being requested. College Counsel summarized some of the pertinent findings, such as the Committee’s acceptance of the evidence of the three main fact witnesses regarding the physical and verbal conduct of the Member. College Counsel highlighted the fact that the Committee did not find any evidence of sexual abuse of a student by the Member and then itemized the myriad of findings regarding the physical contact made by the Member such as hugging and kissing students, touching their buttocks, some of which were admitted to by the Member.

College Counsel stated that the troubling aspects of this case was some of the language that the Member used when addressing his students such as: “I think you have such a great body”; that Student A’s “boobs looked really good in [her] shirt”; “you’re moving in with me when you’re [XXX] anyways”; “if you were [XXX], I would ask you out”; “You’re my type of girl, I would want you as my girlfriend”; “that [Student A’s] was still his girlfriend”; that “[Student A’s] boyfriend was really lucky”; and referred to Student A as “sexy”. College Counsel further stated that the Committee had accepted Student B’s version of events regarding the exchange of text messages between her and the Member.

College Counsel submitted that the comments made by the Member were deeply troubling, and that all three students testified that the Member’s actions and comments made them feel uncomfortable.

College Counsel outlined the principles of sanction that the Committee should consider. The penalty should address both specific and general deterrence. College Counsel stated that the suspension and reprimand would satisfy the requirement for specific deterrence, as it reinforces for the Member, not only the seriousness of his conduct, but the fact that his conduct had an effect on multiple students. College Counsel further stated that publication with the Member’s name would act as a general deterrent, as it sends a message to the other members of the profession that engaging in this behavior will be met with serious consequences. College Counsel emphasized that the penalty should be rehabilitative and provide the Member with valuable information regarding teacher-student boundaries which the Member “blurred, crossed or breached”.

College Counsel stated the Committee should consider the aggravating and mitigating factors when deciding on penalty. College Counsel cited as aggravating factors the length of time that the Member engaged in the inappropriate behaviour, the nature of the misconduct, and the number of students involved. College Counsel stated that the mitigating factors to be considered include that this is the first time that the Member is before the Discipline Committee and the Member admitted to some of the allegations. College Counsel provided two cases for review by the Committee, which he submitted, demonstrated the degree of penalty application for similar behaviour.

SUBMISSIONS OF COUNSEL FOR THE MEMBER

Counsel for the Member stated that one significant finding in this case was that the Committee did not find the Member guilty of sexually inappropriate behavior, specifically Ontario Regulation 437/97 subsection 1(7.3). Counsel further stated that the Committee should be aware of the context created by the not guilty finding with respect to sexual abuse and examine the facts, as a whole, in light of this context. Counsel for the Member submitted that any comments and touching made by the Member were not intended for sexual purposes.

Counsel emphasized that in its decision, the Committee made no finding with respect to grooming behaviour toward the students. Counsel reviewed some of the other findings made and stated that the Member acknowledged his lack of good judgment and admitted to some of the allegations. Counsel stated that the Member has since learned that the appropriate action in the future is to re-direct students to the Guidance Office for assistance with personal matters.

Counsel for the Member submitted that the Member’s lesson has been well learned and questioned the need for a suspension. Counsel acknowledged that the Member’s breach of his position of trust was an aggravating factor. Counsel cited the following mitigating factors for the Committee’s consideration: the fact that there were no previous complaints made against the Member; the length of time the Member has been teaching without any additional complaints; the nature of the allegations; the age and experience of the Member; the loss of income, pension benefits and future earnings; and the fact that rehabilitation “had already been achieved”.

Counsel for the Member provided eight cases for review, which he submitted, demonstrated the degree of penalty application for similar and in some cases, more serious behaviour than the case before the Committee.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that, while the Committee found that the Member’s behaviour did not constitute sexual abuse as defined by the Act, the Committee should consider that the comments were of a sexual nature and not innocent.

College Counsel acknowledged that the Member has paid a price for his conduct, however he encouraged the Committee to examine the admissions made by the Member. College Counsel submitted that, while the Committee does have admissions made by the Member, the admissions were only to the less serious allegations. College Counsel further submitted there was no evidence before the Committee that suggests that the Member accepts that his behaviour was wrong. College Counsel reminded the Committee that the Member denied the more serious allegations.

PENALTY DECISION

On September 16, 2013, the Committee made a partial order as to penalty. As a concession to the Member so that he did not have to return at a later date, and by consent of the parties, the Committee made 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 for a period of three (3) years (the “Register”).

The reprimand was delivered on that day. Since then, the Committee deliberated and now makes the following additional order:

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months;

3. The Registrar is directed not to impose the suspension unless the Member fails to fulfill the terms, conditions and limitations specified in paragraphs 4(i) and (ii) below within 150 days from the date of this Order and the fact of the suspension is to be recorded on the Register ;

4. 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 enroll in and complete at his own expense, two (2) courses of instruction pre-approved by the Registrar. One regarding appropriate boundaries and boundary violation issues and the other in classroom management, both to be completed within 120 days from the date of this Order.

(ii) within thirty (30) days of successful completion of these courses, the Member shall provide to the Registrar written Certificates from the Course Providers stating that, the Member has successfully completed the courses and that, prior to conducting the courses, the course provider reviewed a copy of the Decision, Reasons for Decision and Orders of this Committee; and

5. 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

The Committee found the Member guilty of professional misconduct by engaging in inappropriate verbal and physical contact with students. The Member’s behavior was beyond that expected of a member of the profession. The Member demonstrated a low level of awareness of boundaries and appropriate forms of address and communication with his students.

The reprimand, by his peers, serves as a specific deterrent as it allows the Committee to communicate directly with the Member and express its concern over the inappropriateness of his behavior. The reprimand provides an opportunity to reinforce the standards that a member of the profession is expected to maintain. 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 three month suspension sends a very clear message to the Member and the profession that this type of conduct is viewed very seriously and will not be tolerated. The Committee considered the mitigating factors such as the fact that this was the Member’s first time before the Discipline Committee and the Member’s own admission to some of the allegations. Further, the Committee determined that the Member’s actions did not constitute sexual abuse of the students as defined by the Act. Had this finding been made, it would have resulted in the imposition of a more severe penalty.

Rehabilitation is an important aspect to the discipline process. By postponing the imposition of the suspension pending the fulfillment of the directed coursework, the Committee expects that the Member will gain an understanding of the serious lack of professional judgment he exercised and develop the tools to ensure that this behaviour is never repeated. As stated in its Decision and Reasons for Decision, it was not in issue that the Member was a teacher who was respected and trusted by his athletes and students. The Committee heard evidence that the Member allowed students into his classroom, was generous with his time and with the space available in his classroom. The Committee finds that the Member should first be given an opportunity to complete the directed remedial work and is confident that the imposition of the further sanction of the suspension will not be necessary.

The completion of the required coursework will provide the Member with the opportunity to address issues regarding maintaining appropriate boundaries and classroom management. The Member’s participation in these courses will support his return the classroom.

Publication with the Member’s name conveys to all members of the profession, the issues that teachers face, the potential pitfalls in a classroom setting and the consequences of failing to maintain the highest standards of this profession. The public interest is served by publication with name as it makes it clear to all concerned that members of the profession are not only held to a high standard but expected to maintain that standard. The public will be assured that inappropriate conduct will be met with an appropriate response. The Committee is satisfied that the penalty serves the public interest.

Dated: October 18, 2013

Danny Anckle

Chair, Discipline Panel

_____________________________Alexander Bass, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel