Ontario College of Teachers v. Handscomb, 2014 CanLII 100404

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Handscomb, 2014 ONOCT 47

Date: 2014-09-23

IN THE MATTER OF the Ontario College of Teachers Act, 1996 (the “Act”) and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Ian Howard Alvin Handscomb, OCT, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair Irene Dembek, OCT Pauline Smart

BETWEEN: ) Ava Arbuck,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk

• and - )

IAN HOWARD ALVIN HANDSCOMB ) Heather Ann McConnell,

(CERTIFICATE #197572) ) Sack Goldblatt Mitchell LLP, ) for Ian Howard Alvin Handscomb

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: September 23, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 23, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated October 30, 2012 was served on Ian Howard Alvin Handscomb (the “Member”), requesting his presence on November 12, 2012 to set a date for a hearing, and specifying the allegations. The hearing was subsequently set for September 23, 2014.

The Member was in attendance at the hearing, and represented by his counsel.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated October 30, 2012 (Exhibit 1) are as follows:

IT IS ALLEGED that Ian Howard Alvin Handscomb is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) 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 released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

(c) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students defined in section 1 of the Act;

(d) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(e) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(f) 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;

(g) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(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).

Counsel for the College requested the withdrawal of allegations (c), (d), (e) and (f), namely subsections 1(7), 1(7.2) and 1(7.3) of Ontario Regulation 437/97 and subsection 40(1.1) of the Ontario College of Teachers Act, 1996. The Committee granted this request. These allegations were subsequently withdrawn.

AGREED STATEMENT OF FACTS AND GUILITY PLEA

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

Agreed Statement of Facts

1. At all material times, Ian Howard Alvin Handscomb (“the Member”) was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an [XXX] teacher and [XXX] at [XXX] in Toronto, Ontario (the “School”).

3. Student No. 1, a male student, was a student at the School until his graduation from Grade [XXX] in 2008. After graduating from the School in June 2008, Student No. 1 remained a student of the Board. Student No. 2, a male student, attended the School in Grade [XXX] and Grade [XXX]. He left the School after Grade [XXX], in or around 2005.

4. In or around December 2007, the Member began spending time with Student No. 1 and Student No. 1’s parents discussing where Student No. 1 would attend [XXX] after graduating Grade [XXX].

5. In or around February 2008, the Member and Student No. 1 began corresponding on Facebook.

6. During the 2007-2008 school year, the Member and his spouse purchased a house in Student No. 1’s neighbourhood. During that school year, the Member drove Student No. 1 alone in his car to school, home from school and home from a [XXX] performance in [XXX] with the knowledge of Student No. 1’s parents.

7. In April or May 2008, Student No. 1 advised the Member in a Facebook message that he was questioning his sexuality and was thinking of “coming out” at school. The Member believes that Student No. 1 made this disclosure to him because he is an openly gay teacher and wanted advice. If the Member were to testify he would say he informed the Guidance Counselor at the School and the School Principal of this disclosure.

8. In or around September 2008, when Student No. 1 was [XXX] years old and in Grade [XXX], the Member gave Student No. 1 some DVDs of films about sexuality, sexual orientation, and “coming out”. The films contained sexual content. The Member did not inform Student No. 1’s parents that he provided the DVDs to Student No. 1. Descriptions of some of the films are attached as Exhibit “B”.

9. Between April or May 2008 and October 2010, the Member and Student No. 1 engaged in personal conversations and personal communications on Facebook. These included communications about the Member’s personal life as well as communications regarding sexual orientation, “coming out”, and safety in sexual relationships. Attached hereto and marked as Exhibit “C” are copies of some of the electronic communications sent by the Member to Student No. 1.

10. In addition, the Member commented on photographs posted on Facebook by Student No. 1 including complimenting Student No. 1’s physical appearance. Attached hereto and marked as Exhibit “D” are examples of “likes” posted by the Member regarding Student No. 1’s photographs.

11. In or around October 2010, the Member engaged in inappropriate electronic communications with Student No. 2, who was then a [XXX] student in the Board. The Member failed to report to administrators that Student No. 2 had sexually propositioned to him.

12. Shortly thereafter, the Member initiated a Facebook chat with Student No. 1 regarding Student No. 2, and shared confidential information about Student No. 2 with Student No. 1. Attached hereto and marked as Exhibit “E” is a copy of the Facebook communication between the Member and Student No. 1 about Student No. 2.

13. On or about June 24, 2011, the Board suspended the Member for twenty (20) days and ordered him to undergo training in maintaining professional boundaries. Attached hereto and marked as Exhibit “F” is a copy of the letter dated June 24, 2011 from the Board.

14. Following the events described above, the Member has participated in the following courses, Positive Spaces training with TDSB (2011), the Ontario College of Teachers’ Ethical Leadership Institute course on principles of Ethical Standards – Care, Trust, Respect and Integrity (August 2012), and ETFO’s Boundaries Training and Professional Misconduct Regulation Review (April 2014).

Guilty Plea

15. By this document, the Member admits, for the purposes of this proceeding, the truth of the facts and exhibits referred to in paragraphs 1 to 13 above (the “Admitted Facts”).

16. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(6), 1(15), 1(18), and 1(19).

17. 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 Admitted 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 his counsel and counsel for the College 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 with the advice of legal counsel.

18. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION Having considered the evidence, onus and standard of proof, and the submissions made by counsel for the College and counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Ian Howard Alvin Handscomb committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(6), 1(15), 1(18), and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Admitted Facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) constitute conduct which is professional misconduct and pleaded guilty to the allegations of professional misconduct against him. The Committee accepts the Member’s guilty plea and the facts contained in the Agreed Statement of Facts and Guilty Plea.

The Member acknowledged he engaged in unprofessional behaviour with Student No. 1 and Student No. 2, which involved inappropriate electronic communications. The Member agreed to having been involved in an inappropriate personal relationship with Student No. 1 while the student attended the Member’s school. The Member further admitted to engaging in inappropriate conversations of a sexual nature and providing DVDs containing sexual content to Student No. 1. In addition, the Member admitted to engaging in inappropriate electronic communication while sharing information about Student No. 2 to Student No. 1. The Member also showed a lack of judgement when he failed to report to administration of being sexually propositioned by Student No. 2.

In light of the Member’s behaviour and guilty plea, the Committee finds that the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(6), 1(15), 1(18), and 1(19).

JOINT SUBMISSION ON PENALTY

Counsel for the College and counsel for the Member submitted a Joint Submission on Penalty (Exhibit 3) indicating the following:

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:

1. Directs that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. Directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of twenty (20) days, with such suspension having been served from June 27, 2011 to September 27, 2011. The fact of the suspension set out in this paragraph is to be recorded on the public Register.

3. Directs the Registrar 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:

A. the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar covering professional boundaries and boundary violations;

B. the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) the course provider has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty document made an exhibit at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

4. Directs 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.

ADDITIONAL SUBMISSIONS

After the College submitted the Joint Submission on Penalty, Member’s Counsel advised the Committee that the Member had now agreed to have his name published in Professionally Speaking/Pour parler profession. Publication serves as a specific deterrent to the Member, acts as a general deterrent to the profession and is in the public interest. Publication with name is consistent with the principles of specific and general deterrence.

The Committee, in reviewing the evidence presented in the Agreed Statement of Facts and Guilty Plea, struggled with the Joint Submission on Penalty, namely the retroactive suspension and that there was no time limit during which the Member was to complete the course. Subsequently, Defence Counsel submitted that the Member had already served a twenty (20) day unpaid suspension. In addition, Defence Counsel agreed to impose a time limit of one hundred and twenty (120) days from the date of the Hearing for the Member to complete the required courses. College Counsel concurred with Defence Counsel’s submissions. The Committee subsequently accepted the additional submissions on penalty.

PENALTY DECISION

The Discipline Committee makes the following order as to penalty:

1. The Member is required 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 College Register.

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of twenty (20) days, with such suspension having been served from June 27, 2011 to September 27, 2011. The fact of the suspension set out in this paragraph is to be recorded on the public Register.

3. 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:

A. the Member shall enrol in and successfully complete at his own expense, within one hundred and twenty (120) days of the Decision of the Discipline Committee, a course of instruction pre-approved by the Registrar covering professional boundaries and boundary violations;

B. the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) the course provider has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty document made an exhibit at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

4. The findings and orders of the Committee shall be published 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

Although the Committee initially struggled with the Joint Submission on Penalty, after hearing additional submissions regarding the retroactive suspension and the coursework, the Committee accepted the penalty, adding a requirement to the terms, conditions, and limitations on the Member’s Certificate of Qualification and Registration, that the coursework be completed within one hundred and twenty (120) days of the Committee’s decision.

The law states that the Committee is bound to accept joint submissions as agreed to by the parties unless it would bring the administration of justice into disrepute. In this case, although the Committee struggled with its decision, the penalty is neither too onerous nor too lenient such that it would bring this discipline process into disrepute.

The Committee determined that the Joint Submission on Penalty and Additional Submissions were proportionate to the misconduct committed by the Member and appropriate in the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties, with the addition of one hundred and twenty (120) days for completion of the course.

The reprimand addressed the need for a specific deterrent and instructs the Member to consider his actions in the future. Coursework will provide the Member with strategies for understanding and avoiding boundary violations and, therefore, satisfies the need for rehabilitation.

Personal communications with students and/or providing students with materials not approved by school boards is a subject of much debate, both in the profession and in the public sphere. It is now firmly established that teachers who engage in any form of personal communications with students, could be disciplined in some manner. The use of electronic media (e.g. social media, texting, multi-media) is now firmly entrenched and has revealed many dangers for members of the profession, regardless of the intent. It is the view of the Committee that the Member had crossed over the professional boundaries of the teacher and student relationship. The ease of communication with students that this form of contact allows makes it easy to fall into precarious communication practices that could be deemed conduct unbecoming a member.

The Committee determined that publication with name as agreed to by the parties was appropriate in the circumstances. Publication of summary with the Member’s name contributes and guides other teachers in choosing appropriate personal and professional practises.

The Committee is satisfied that the penalty is appropriate in the circumstances, and serves and protects the public interest.

Date: September 23, 2014 ______________________________

Wes Vickers, OCT Chair, Discipline Panel

______________________________ Irene Dembek, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel