Ontario College of Teachers v. Buckley, 2014 ONOCT 14

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Buckley, 2014 ONOCT 14

Date: 2014-05-02

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

Richard S. Buckley, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair Stefanie Achkewich, OCT Louis Sloan, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Larissa Moscu, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk

• and –

RICHARD S. BUCKLEY (CERTIFICATE #438110) Simon Blackstone, Ursel Phillips Fellows Hopkinson LLP, for Richard S. Buckley

Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: May 2, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on May 2, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 25, 2012 was served on Richard S. Buckley (the “Member”), requesting his presence on August 9, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 2, 2014.

The Member was in attendance.

THE ALLEGATIONS

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

IT IS ALLEGED that Richard S. Buckley is guilty of professional misconduct 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 failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264 thereof, contrary to Ontario Regulation 437/97, subsection 1(15);

(c) 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).

(d) 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

(e) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

AGREED STATEMENT OF FACTS

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:

1. Richard S. Buckley (the “Member”) was at all material times, 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 respecting the Member.

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

3. At all material times, “A” was a female colleague at the School.

4. In early 2007, the Member began to develop feelings for “A” and became infatuated with her.

5. During the material times, the Member and “A” would car pool to School together as their residences were close to each other.

6. In March 2007, “A” told the Member that she was not going to car pool with him anymore.

7. The Member continued to call “A” at her home, after she told him that the feelings of infatuation he expressed to her were not reciprocated.

8. Furthermore, the Member would call “A” at her home to advise her that he wanted to resume carpooling.

9. The Member called “A” at her home several times, finally speaking with the husband of “A”. The husband of “A” told the Member that that he understood the situation between the Member and his wife and the Member’s infatuation with his wife. In the view of the husband of “A”, the Member needed more time to get over the infatuation.

10. On or about March 19, 2007, “A” met with the Member and told him to stay away from her. After such meeting, the Member approached “A” on one or more occasions.

11. “A” wrote a letter to the Member advising him not to approach her in anyway and to stay away from her. Attached and marked as Exhibit “B” is the letter from “A” to the Member dated September 11, 2008.

12. On or about September 12, 2008, the Member after receiving the letter from “A” advising him to stay away from her, approached “A” at a staff party. A verbal altercation ensued, and the Member threw the letter at her.

13. On or about September 23, 2008, the Member was charged with Criminal Harassment contrary to subsection 264(2)(b) of the Criminal Code (Canada).

14. On or about March 9, 2009, the Member pleaded guilty to, and/or was found guilty of, the charge described in paragraph 13 above, and received a conditional discharge with twelve (12) months’ probation. Attached and marked as Exhibit “C” is the transcript of Proceedings before Mr. Justice R.G.E. Hunter dated March 9, 2009.

15. 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 14 above (the “Agreed Facts”).

GUILTY PLEA

16. The Member hereby acknowledges that the Agreed Facts referred to in paragraphs 7, 9-10, 12-14 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(16), 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 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 with the advice of legal counsel.

18. 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.

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 Richard S. Buckley committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18-unprofessional) and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Agreed 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 statement tendered by the parties.

The Member became infatuated with a colleague, who told him that the feelings of infatuation he expressed to her were not reciprocated. The Member then engaged in repeated unwanted contact with this colleague, over a period of approximately 18 months. This unwanted contact included calls to the Member’s home on several occasions, attempts to approach her on one or more occasions and culminated with a letter from the colleague to the Member advising him not to approach her in any way and to stay away from her. The next day at a staff party, the Member approached the colleague once again, a verbal altercation ensued and the Member threw the letter at her. This behaviour resulted in the Member being charged and later pleading guilty to a charge of Criminal Harassment contrary to subsection 264(2)(b) of the Criminal Code (Canada).

In light of the Member’s behaviours and the plea of guilt to a charge of Criminal Harassment, the Committee finds that the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 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:

(a) directs that the Member 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 “Register”). The reprimand will be delivered in person at the offices of the College, 101 Bloor Street West, Toronto, Ontario;

(b) 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, and limitations to be recorded on the Register until such as they are fulfilled:

(i) the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries with respect to colleagues;

(ii) within thirty (30) days of his completion of the course outlined in (i) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

A. he or she has reviewed a copy of the Agreed Statement of Facts, Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

B. the Member has successfully completed the course.

(c) 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.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Member’s name should be published in Professionally Speaking/Pour parler profession. Counsel pointed to four factors in favour of publication of the Member’s name. First was the charge of criminal harassment and the Member’s guilty plea and that the colleague feared for her safety. This was not a single incident but was over a period of 19 months. Third this culminated in a shouting incident and throwing the letter. The Colleague took steps to advise the Member she would no longer carpool with him and advised the Member “not to approach her in any physical or verbal way whether in a professional or personal environment”.

Submissions of Member’s Counsel

Counsel for the Member submitted that the Member’s name not be published in Professionally Speaking/Pour parler profession. Counsel submitted that specific and general deterrence can be satisfied without publication of the Member’s name. Counsel submitted that the Member’s misconduct was at the low end of the scale and that the Committee could be comforted that five or six years have lapsed since the period of time of the harassment and there has been no evidence of this type of conduct. Counsel indicated that the Member remains a teacher with the same board, at a different school and publication of his name would hurt his professional career. It might also identify the colleague, returning her to a level of unwanted notoriety, due to the nature of a small, rural community.

Counsel for the Member also indicated that publication of name was a “narrow casting” within the profession and transparency was achieved by the broader publication of decisions on the College’s website.

Reply Submissions of College Counsel

Counsel for the College did not agree that the misconduct was at the low end of the spectrum; in fact it was a contravention of a criminal law. Counsel stated that harassment was serious and put another member of the College in fear for her own safety, at home and at school.

Both counsel submitted prior cases of the Discipline Committee in support of their submissions on publication.

PENALTY DECISION

The 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 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 College 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 regarding appropriate boundaries with respect to colleagues;

(b) within thirty (30) days of his completion of the aforementioned course, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Agreed Statement of Facts, and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the decision and Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. 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

The Committee carefully assessed the arguments presented by both counsel in determining an appropriate penalty. The Member and the College accepted the fundamental elements of the penalty, specifically a reprimand, a successfully completed boundaries course with respect to colleagues and publication of the findings, in summary form, in the official publication of the College. It was left to the Committee to determine whether the name of the Member would be published in the official publication of the College, Professionally Speaking/Pour parler profession.

The Committee agreed that a reprimand was appropriate in that the Member needed to have a specific deterrent to help him understand the serious nature of his misconduct. The registration of a reprimand on the Member’s Certificate will additionally serve as a general deterrent, and most important, will signal to the profession and the public that the maintenance of appropriate and respectful relationships with colleagues must be adhered to by members of the profession.

The requirement that the Member successfully complete of a course on appropriate boundaries with respect to colleagues will address the conduct engaged in by the Member.

The Committee takes its responsibility to provide for general deterrence in its decisions seriously. In the matter of publication, the only way to educate the profession and signal the seriousness of the type of behaviour engaged in by the Member is to publish the Member’s name. The Member’s actions comprised a serious breach of trust and showed a blatant lack of professional judgment, causing another member of the College to fear for her safety. Publication of name also serves the public interest by providing transparency to the College’s processes, and by reassuring and informing the community that the profession acts decisively when matters of this nature are brought to its attention.

In conclusion, the Committee denounces the Member’s behaviour and is confident that the penalty, with its many elements, is in the public interest.

Date: May 2, 2014

Robert Gagné, Chair, Discipline Panel

Stefanie Achkewich, OCT Member, Discipline Panel

Louis Sloan, OCT Member, Discipline Panel