Ontario College of Teachers v Bussineau, 2014 ONOCT 16

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bussineau, 2014 ONOCT 16

Date: 2014-04-15

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 Jeffrey Tavis Bussineau, OCT, a member of the Ontario College of Teachers.

PANEL: Mel Greif, Chair Monika Ferenczy, OCT Alexander (Sandy) Bass, OCT

BETWEEN: ) Eli Mogil, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix, ) Law Clerk -and- ) ) Andrea Wobick, ) Ursel Phillips Fellows Hopkinson LLP ) for Jeffrey Tavis Bussineau JEFFREY TAVIS BUSSINEAU ) (CERTIFICATE # 467352) ) ) Marc Spector, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) Heard: July 8 & 9, 2013, November ) 14 and December 18, 2013, January ) 14 & 15, 2013

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 8, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing, dated November 4, 2011, was served on Jeffrey Tavis Bussineau (the “Member”), requesting his presence on November 24, 2011 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on July 8, 2013. The proceedings continued on July 9, November 14 and December 18, 2013, January 14, 2014 and concluded on January 15, 2014.

The Member was in attendance throughout the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated November 4, 2011 (Exhibit 1) are as follows:

IT IS ALLEGED that Jeffrey Tavis Bussineau is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) 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;

(e) he failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under those Acts, 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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Jeffrey Tavis Bussineau (the “Member”) is a member of the Ontario College of Teachers.

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

3. At all material times, the Student was a [XXX] year old female student of the Member.

4. During the 2009-2010 academic year, the Member:

(a) provided the Student testing accommodation for the Grade [XXX] EQAO literacy test that was not listed on the Student’s Individual Education Plan;

(b) had an inappropriate personal relationship with the Student;

(c) engaged in electronic communication with the Student via Facebook, a social media;

(d) called the Student “Hon” and/or “Cutie Pie”;

(e) invited the Student to babysit at his home and/or stay overnight at his home;

(f) had sexual contact with the Student which included:

(i) touching;

(ii) fondling her breast(s);

(iii) kissing.

5. The Member’s employment was terminated by the Board on or about October 13, 2010.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing (Exhibit 1).

OVERVIEW

The allegations against the Member fell under three categories: the implementation of inappropriate testing accommodations to a student, non-sexual boundary violations and sexual misconduct.

With respect to the first category, the Committee had to determine whether the Member did indeed provide testing accommodations to a student that were inappropriate. In terms of the second set of allegations, the Committee bore the task of deciding whether the Member had violated his professional boundaries by engaging in a personal relationship with a student.

Finally, it was the Committee’s duty to conclude whether the Member had sexual contact with a student, and whether his conduct in each of the categories constituted professional misconduct.

THE EVIDENCE

Counsel for the College tendered a brief of documents (Exhibit 3), and the parties advised the Committee that they were only requesting the documents identified by witnesses to be entered in as evidence.

College Witnesses

The College called two witnesses, namely Asima Vezina, a superintendent of education, and the student with whom the Member was alleged to have had an inappropriate relationship (the “Student”).

Testimony of Asima Vezina, Superintendent of Education

Asima Vezina (“Ms. Vezina”) is a superintendent of education with the Algoma District School Board (the “Board”). She testified that she held this role during the 2009-2010 school year, the period of the alleged events.

Ms. Vezina stated that as a superintendent of education, she oversaw two different families of schools: the regular family of schools and [XXX] schools. The witness explained that [XXX] schools are set up for students who come from different backgrounds and who, in many cases, have not fared well in regular programming. At the time of the alleged incidents, the Member taught at one of these [XXX] schools, the [XXX] (the “School”), where classes would run from about 11:00 a.m. to 3:30 or 4:00 p.m. Ms. Vezina stated that for this program, the Board tried to find very caring adults and teachers who would understand at-risk students.

Ms. Vezina testified that before May 2010, she did not know anything about the Member or the Student. The witness stated that in May 2010, she received a call from Michael McCabe (“Mr. McCabe”), the principal at the School. A student had reported to a teacher that she had seen the Member and the Student at a [XXX] having coffee, and the teacher had subsequently provided Mr. McCabe with this information.

Ms. Vezina met with Mr. McCabe, and from May 18, 2010 to October 17, 2010, the superintendent and the principal conducted a series of interviews into the matter (Exhibit 3, Tab 1, p. 1, Interview Schedule). With the help of her handwritten notes from the meeting (Exhibit 3, Tab 1, pp. 5-7), the witness spoke to the first interview that she and Mr. McCabe conducted, namely her interview with Student A.

Interview with Student A, May 18, 2010

According to Ms. Vezina, Student A stated that she and another student from the School, Student B, worked at a [XXX] and that on one occasion, they saw the Member and the Student walk into the restaurant at around 5:30 p.m., with the Member holding the door for the Student. Student A told Ms. Vezina that at the time, she thought that this meeting was “kind of weird”. Student A described the Student as seeming hesitant, playing with her collar and slouching. Student A stated that the Student and the Member sat in the corner of the [XXX]. Ms. Vezina testified that at the time of the interview, she figured there was a logical explanation for a teacher being at a [XXX] with a student and hoped to understand the situation more as the interviews progressed. The superintendent also stated that while she did not know if it was a typical occurrence in an [XXX] program for teachers and students to get together outside of school, she did know of teachers that had met students at different places to encourage them to go to school.

Interview with Randy Gregory, May 18, 2010

Ms. Vezina’s second interview was with Randy Gregory (“Mr. Gregory”), the teacher at the School who had been approached by a student regarding the [XXX] incident. The superintendent recounted this interview using her handwritten notes from the meeting (Exhibit 3, Tab 1, pp. 11-19). During this interview, Mr. Gregory told Ms. Vezina that the Student had her desk right beside the Member’s desk in the Member’s classroom. Ms. Vezina stated that while it would be normal that a teacher might give preferential seating to a student, she did not deem the description of the location of the Student’s desk and the way it had been set up as normal. Mr. Gregory told the superintendent that the Member and the Student were close and spoke to how he thought the Member was trying to help the Student.

Ms. Vezina gave testimony that during this meeting, she learned the Student had previously demonstrated volatile behaviour. Mr. Gregory explained to Ms. Vezina that he would program students with two teachers, one for the morning and one for the afternoon. He had arranged it so that the Student had Mr. Nevin for one class and the Member for another. For some reason, however, the Student would stay in the Member’s class all day with her desk right beside his. Mr. Gregory told Ms. Vezina that he thought this was the result of the Student’s learning difficulties. When Mr. Gregory suggested scheduling her into another teacher’s room, the Student “flipped out”, starting yelling, walked out of the room they were in and slammed the door. Mr. Gregory also spoke to an incident where the Student swore in another teacher’s classroom and was subsequently suspended for five days. Mr. Gregory informed Ms. Vezina of the Student’s learning disabilities, namely [XXX] and [XXX], and told the superintendent about the Student’s poor attendance and the lack of progress in her schooling.

Interview with the Student, May 18, 2010

Ms. Vezina gave testimony of her interview with the Student. Although the superintendent had the aid of an interview summary that she and Mr. McCabe prepared after the meeting (Exhibit 3, Tab 1, pp. 30-31), she testified to having an independent recollection of the interview, which took place three years ago. Ms. Vezina stated that she was able to recall the events because she reviewed the situation many times with her administrative council, director, the College and the police.

At the interview, Ms. Vezina explained to the Student that a student from the School had reported seeing her and the Member at a [XXX] together on May 13, 2010. The Student confirmed that this meeting had occurred, stating that it took place because of the incident where she swore at a teacher and was suspended for five days. Ms. Vezina testified that the Student indicated having had a conversation with the Member’s wife, having babysat for the couple and having gone to their house for supper. Ms. Vezina stated that although she wondered why an at-risk student, who was fairly volatile, would be babysitting, she still thought that there could be a rational explanation for the situation.

The Student told Ms. Vezina during the interview that the Member was a friend, that he helped her and that, before he was her teacher, she had no credits and was depressed. The Student stated that the Member changed this and that he reached out more than others. Ms. Vezina testified that when she asked the Student if the Member had ever done anything “more than [a] friend” would or if he had ever done anything to make her feel uncomfortable, the Student responded by saying “never” and raising her voice. The Student, Ms. Vezina testified, appeared to be agitated by this question as she was grabbing her collar or twisting her hair and her neck was flushed. Ms. Vezina determined that it would be best to end the conversation at this point, given what she knew about the Student’s profile and what she knew about students with [XXX] and [XXX]. Ms. Vezina stated that she did not understand why she had received such a strong response to her question and thought there was something more to the Student’s story.

Interview with the Member, May 18, 2010

After meeting with the Student, Ms. Vezina conducted an interview with the Member. During this portion of her testimony, the superintendent had the help of an interview summary that she and Mr. McCabe had prepared after the meeting (Exhibit 3, Tab 1, pp. 60-63). Despite this aid, the witness testified to having an independent recollection of the interview. Ms. Vezina stated that the Member had a professional demeanour and provided good explanations for a number of the questions being asked.

At the interview, the Member confirmed that there had been a meeting at [XXX]. He told Ms. Vezina that after the Student’s run-in with a teacher, she was given a five-day suspension. The Student blew up, and the Member tried to calm her down in the parking lot and also called her that day to give her advice in dealing with her suspension. He learned that the Student was upset with the length of the suspension, and he told her that he would talk to the teacher and follow up. The Member told Ms. Vezina that during the week of the Student’s suspension, he contacted the Student by phone and Facebook before their meeting at [XXX]. Ms. Vezina stated that although she was not concerned about the phone calls, she made a mental note to follow up with the Member sometime later about his Facebook communication as the Board had previously sent out a memo discouraging the use of Facebook with students. With respect to the actual meeting at [XXX], Ms. Vezina learned that the Member had picked the Student up in his own vehicle when she was walking to the coffee restaurant to meet him and that, after the meeting, he had driven her back home.

The Member also informed the superintendent and the principal that the Student suffered from [XXX] and had experienced changes in her medication. He stated that he had observed [XXX] from [XXX] and had involved the school and attendance counselor. Ms. Vezina testified that at this point, she stopped the interview for a while to speak with Mr. McCabe about the Member’s statements. They arranged for the school and attendance counselor, Michelle Trudel, to go over to the School and check on the Student.

Ms. Vezina testified that during her interview with the Member, he spoke about how he brought the Student to the crisis service of the hospital on April 6, 2010. The Member told the Student that he could not help her and suggested the crisis service, where the Student could be assessed. The Member stated that, after they were done at the hospital, he brought the Student home and explained the situation to her mother. The day after the trip to the hospital, the Member spoke to a drug counselor from Algoma Family Services about different options and also arranged for counselling for the Student the next day.

Ms. Vezina testified to asking the Member whether the Student had ever been to his home. The Member responded that the Student had been working well with the children at the School’s daycare, so he had the Student babysit his child at his home as he felt that this was a chance to show trust. The Member indicated to the superintendent and principal that he had spoken to his wife about the Student babysitting and that the Student had babysat for them on three occasions: once when she came over to their home for dinner during the March break, a second time for a few hours when the Member was in the garage and his wife was upstairs and a third time when the couple went out for dinner. During the interview, the Member did not indicate to Ms. Vezina that there were any instances in which he was home alone with the Student. At the end of the interview, Ms. Vezina told the Member that she would call his wife to confirm that the Student had been to their home to babysit.

Interview with Ms. Bussineau, May 18, 2010

Ms. Vezina testified that after her interview with the Member, she called the Member’s wife, Cynthia Bussineau (“Ms. Bussineau”). Ms. Vezina gave her testimony of this call using an interview summary that she and Mr. McCabe prepared after the telephone conversation (Exhibit 3, Tab 1, pp. 68). During the call, Ms. Bussineau confirmed that the first time the Student came over to babysit was sometime in March and that the couple invited the Student over for dinner to familiarize her with their daughter. Ms. Bussineau stated that the second time the Student babysat, she was out grocery shopping, and her husband picked up the Student at around 1:00 p.m. and tutored her for the literacy test. Having learned that the Member and the Student had been alone together at his home, Ms. Vezina and Mr. McCabe made a note to caution the Member about this issue.

Interview with Michelle Trudel, May 19, 2010

Ms. Vezina testified that the next day, she interviewed Michelle Trudel (“Ms. Trudel”), the school attendance counselor, whose role was to provide students with social and emotional counseling and to work with students who had attendance issues. During this portion of her testimony, Ms. Vezina had the aid of an interview summary that she and Mr. McCabe prepared after the meeting (Exhibit 3, Tab 1, pp.89-91) to refresh her memory.

Ms. Vezina stated that after she and Mr. McCabe had interrupted their interview with the Member to send Ms. Trudel to check on the Student, the counselor spoke with the Student and learned more information that she wanted to share with Ms. Vezina and Mr. McCabe. Ms. Trudel stated that the Student had not told the superintendent and principal everything in her interview the day before and that the Student seemed concerned that the Member could get in trouble or lose his job. When Ms. Trudel met with the Student, the Student shared that the Member had previously asked her through Facebook to babysit and spend the night. The Student told the counselor that she thought this was weird and said no. Ms. Trudel told Ms. Vezina that the Student described other instances in which she felt awkward, stating that the Member had called her “hon” and “cutie pie” and citing a Facebook conversation in which the Member told the Student that his wife was in bed and that he was “sitting out on the deck in his boxers with beer number three”. The Student indicated to the counselor that she “wanted help but not these other things that came with it”. Ms. Trudel also stated that the Student admitted to lying to Ms. Vezina and Mr. McCabe the day before about whether there had been Facebook communication between her and the Member.

Second Interview with the Student, May 2010

Ms. Vezina testified that she and Mr. McCabe interviewed the Student a second time after obtaining more information from Ms. Trudel. The superintendent gave her testimony of this interview with the help of a summary that she and the principal prepared after the meeting (Exhibit 3, Tab 1, pp. 101-102). Ms. Vezina stated that Ms. Trudel and the Student’s mother were present during this interview as the superintendent had wanted a family member supporting the Student.

Ms. Vezina testified that at the beginning of the meeting, the Student was very complimentary of the Member, stating that he helped her and that she started attending school more because of him. The Student stated that the Member knew of her learning disability, read through her Ontario Student Record, which included all her assessments and diagnoses, and would read and scribe for her when she did her work. She mentioned that the Member would help her after hours and that she had gone to his house to get assistance for the literacy test. The Student told Ms. Vezina that on this day, she was at the Member’s house at around 1:00 p.m. and that they were alone for about half an hour since his wife was out getting groceries. When Ms. Vezina asked the Student if anything inappropriate happened, she said “no” and mentioned that the Member made pizza when his wife came home.

Ms. Vezina stated that when asked about whether the Member had ever made a comment about “being on the deck in his boxers with a beer”, the Student indicated that he had not made such a comment. When questioned about the words “cutie pie” and “hon”, the Student asked the interviewers if the Member would know if she confirmed these comments, stating that she would not get any help at school if the Member did because he would be mad. The Student also wanted to know if the Member would be coming back to the School.

Ms. Vezina testified that at this point in the interview, the Student was getting very agitated, twisting her hair, was flushed in the chest and was pacing. The Student stated that she was done with the interview and left the room. The Student’s mother, who had stayed in the room, told the interviewers that her daughter was not telling them the whole truth, that her daughter knew that the comments about boxers and beer was not right and that she would not have taken it any further.

Ms. Vezina stated that she and Mr. McCabe left the room, allowing the Student to go back in to speak with her mother and Ms. Trudel. After this meeting, Ms. Trudel told Ms. Vezina and Mr. McCabe that the Student indicated to her mother that she still had the electronic messages that had been sent back and forth between herself and the Member. Ms. Vezina wanted to know if she could access these messages.

Interview with Jim Nevin, May 28, 2010

Ms. Vezina testified to interviewing Jim Nevin (“Mr. Nevin”), a teacher at the School. She spoke to this interview using her notes from the meeting (Exhibit 3, Tab 1, pp. 113-124). Mr. Nevin indicated to the interviewers that a couple of students had approached him and asked if he was aware that the Member had purchased Plan B, the morning-after pill, for the Student. After one of the students commented that the Member was like the Student’s “gofer”, Mr. Nevin cut the conversation short as he felt uncomfortable. Ms. Vezina stated that, at this point, she was questioning in her mind why the Member had taken the Student to the crisis service at the hospital and was buying her birth control pills without involving the school and attendance counselor, another staff member or the principal.

Second Interview with the Member, June 15, 2010

Using a summary that she and Mr. McCabe prepared to refresh her memory, (Exhibit 3, Tab 1, pp. 179-186), Ms. Vezina testified regarding her second interview with the Member. Ms. Vezina stated that Joe Maurice, another superintendent of education, attended this meeting as the Board had begun to recognize that the issues were serious and that the investigation could result in disciplinary consequences.

Ms. Vezina testified that she asked the Member if he had been in contact with the Student since the last interview. He responded that his only contact was to let her know that he was taking her off Facebook. The Member had gone to school and spoken to the Student, and she seemed angry, throwing some of her desk things out as if she were leaving the building. The Member stated that the Student went to Mr. Nevin’s class and that, when she came back to the Member’s classroom to get her things, the Member did not speak to her. The Member indicated to the interviewers that he thought the Student was going to drop out of the program. However, the Student did not drop out of the program. She had been speaking to another female student that day, and this student might have convinced her not to leave.

According to Ms. Vezina’s testimony, the Member was questioned regarding his wife’s comment that the second time the Student babysat for him, they were alone at his home for two hours while Ms. Bussineau was out with their daughter grocery shopping. The Member confirmed that his wife had been out at the grocery store while he and the Student were at his home, explaining that he had picked the Student up at 1:00 p.m. and that they had arrived at his place at 2:00 p.m. The Member indicated that his daughter was there, and he apologized to the interviewers, stating that he did not remember this at the last interview as the events had taken place two months before that meeting. Ms. Vezina asked the Member if it was appropriate to tutor students alone at his home, and he stated that it could be looked at as inappropriate and that it was not the right thing to do. The Member told the interviewers that he did what he did because the Student needed help with the literacy test, and he felt that she could be successful with tutoring and accommodations.

According to Ms. Vezina, when questioned as to whether he had asked the Student to spend the night, the Member replied that the Student was a very good babysitter, and that since he and his wife were desperate for a babysitter, he wanted to know for future babysitting assignments whether she would be comfortable spending the night. Their home was far removed from town, and if he and his wife were to come home late, it would be convenient if a babysitter could spend the night. The interviewers then told the Member that they had received information that he had indicated to the Student that if things were bad at home, she could sleep at his place and that he would drive her to school in the morning. In response, the Member shared that the Student’s relationship with her mother was strained and that they had been part of an intensive treatment services program for families for three years. He indicated speaking to the Student about respecting her mother as she did not treat her mother well. Ms. Vezina stated that when asked if his wife was aware that he had offered their home as a safe place to the Student, the Member responded that she was not aware, adding that his offer to the Student was not well thought out but rather a reaction to the Student sharing what was going on at home.

Ms. Vezina testified to learning during the interview that the Member had corresponded with the Student four times a week over Facebook at 8:30, 9:00 or 10:00 p.m. and that they would talk about his daughter, the Student’s mental state and her home life. Ms. Vezina indicated to the Member that she did not understand the need to correspond outside of school hours at this frequency since the Student was already coming to school early and staying late to speak with him. The Member admitted to the interviewers that he could see where this type of contact with a student was not appropriate.

Ms. Vezina gave testimony that the Member indicated having driven the Student home on three or four occasions. He stated that he could see how driving her home could be seen as not acceptable but that it would depend on the context as he was just trying to support the Student in terms of her self-confidence and academics.

Ms. Vezina stated that when the Member was asked about the “on the deck in my boxers, beer number three” comment, he confirmed that he did make this comment, adding that it was dumb and there was no reason for it. Ms. Vezina asked him whether he had called the Student “cutie pie” and “hon” when dropping her off from school and in their correspondence on Facebook. The Member responded that while he might have made those remarks once or twice on Facebook, the remarks were not terms of endearment but a nickname. Ms. Vezina stated that he confirmed this behaviour was probably not appropriate for a teacher.

When Ms. Vezina asked the Member if he had purchased the morning-after pill for the Student, he stated that he did not buy it for her but had advised her to see a pharmacist and had driven her to the mall, where the pharmacy was. The Member explained to the interviewers that the Student was worried that she would spend her babysitting money on drugs, so the Member held on to the money and was giving the Student the payment in small portions. The Member stated that when he drove her to the pharmacy, he gave her the last of her babysitting money so she could pay for the morning-after pill.

Ms. Vezina testified that at the end of the interview, the Member stated that he knew corresponding with the Student on Facebook and driving her could be seen in a bad light. To him, however, he was trying to “save a kid’s life". He stated that the Student was crying out for help as he had seen [XXX], and she had feelings of hopelessness and had experienced medication changes. He stated that he was worried that she would do something “unthinkable”, and while he knew what the boundaries were, he went past them in trying to help the Student. According to Ms. Vezina, the Member indicated to the interviewers that perhaps a mentor for these issues would have been a good thing as he sometimes felt he was on his own at the School.

Investigation into the Student’s Literacy Test Results

Ms. Vezina gave testimony of an investigation into the Student’s Ontario Secondary School Literacy Test results. Ms. Vezina stated that when Paula Johnson (“Ms. Johnson”), the teacher overseeing the literacy test, received the School’s scores, it stood out to her that the Student had scored 355. This score was thirty points above the provincial median, forty points above the School median and the third-highest mark in the School.

Ms. Vezina explained that students who were on an individualized education plan (“IEP”) could be accommodated during the literacy test and that these accommodations were supposed to come from their IEPs. The witness stated that once an IEP student was in queue to write the literacy test, there would be a review of the student’s general classroom accommodations to see if the student would qualify for any accommodations during testing. These accommodations would have to be agreed upon at an Identification Placement and Review Committee meeting, and they would then be input into a website. Ms. Vezina testified that the Student did not have a current IEP for the 2009-2010 school year, stating that this could have been for a couple of reasons. The Student had not been in school during the fall term semester when IEPs were usually prepared, and the School, which had been previously located in a typical secondary school, [XXX], had moved to an alternate site partway through the year. Ms. Vezina testified that student records were transferred at this time, and staff may have missed the opportunity to update the Student’s IEP for the year. Ms. Vezina explained that since the Student did not have a current IEP for the year, the accommodations would have had to come off her previous IEP from the 2008-2009 school year (Exhibit 3, Tab 6, p. 346).

Ms. Vezina testified that during her second interview with the Member, she had asked him to describe the accommodations he made for the Student and how he had prepared her for the literacy test. The Member stated that the Student worked hard, used a literacy prep book and completed all the questions from the test booklet she had received from a teacher. In terms of accommodations, the Member told Ms. Vezina that he acted as a reader and a scribe for the Student. The superintendent explained that a student working with a scribing teacher would give an oral response, while the teacher would write down verbatim what the student said. Ms. Vezina stated that while she had never heard of having a reader as an accommodation, she understood this term to mean that the Member would read the questions to the Student. The superintendent testified that the general classroom accommodations listed in the Student’s 2008-2009 IEP did not include having a scribe or a reader.

Ms. Vezina stated that she informed the Educational Quality and Accountability Office (the “EQAO”) of the issue regarding the Student’s high literacy score and filled out a quality assurance investigation report for the organization (Exhibit 3, Tab 3, pp. 238-239). Ms. Vezina testified to reviewing the Student’s academic history, her marks and in particular her applied English grade. The superintendent stated that she also considered the Student’s attendance record, which included a high number of absences (Exhibit 3, Tab 6, p. 343). Further, she spoke to Ms. Johnson, who had previously taught the Student. Ms. Vezina testified that the information she reviewed and received caused her to question how the Student had received such a high mark when her academic history did not demonstrate the same level of achievement.

Ms. Vezina stated that she spoke with the Member again on June 25, 2010 to obtain more clarification around the testing accommodations and testified regarding the conversation using her notes (Exhibit 3, Tab 1, pp. 188-1189). At this time, the Member indicated to the superintendent that he had had a meeting at the School with Mr. McCabe and Ms. Johnson about the accommodations. When Ms. Vezina asked Mr. McCabe about the matter, he stated that he had no recollection of meeting with the Member but that it was possible that it happened. The superintendent testified that Ms. Johnson, by contrast, had a different account of the events in that the literacy teacher reported receiving a call from the Member about which accommodations should be recorded into the system. Ms. Johnson stated that she did not question the accommodations and put them into the computer. Ms. Vezina testified that given the Student’s academic history and marks, the conclusion of her investigation into the literacy test results was that the Member had unilaterally made the decision to apply the accommodation of scribing for the Student without going through the proper procedures.

Third Interview with the Student, September 22, 2010

Ms. Vezina testified regarding her third interview with the Student, using notes from the interview and a summary she prepared after the meeting (Exhibit 3, Tab 1, pp. 196-211). Ms. Vezina stated that in the fall of the next school year, the Student was at another school. The superintendent received a call from the school attendance counselor at that school and learned that the Student wanted to speak with her right away. Ms. Vezina met the Student and the counselor at the Student’s new school, and the Student provided new information about her relationship with the Member. The Student told the superintendent that she had not told the full story during her first two interviews because she felt very guilty and had lied to protect the Member. The Student stated that she did not feel it was her fault anymore and that it was hurting her inside, “like a weight in (her) body” that she needed to “let out”. She indicated that she was sharing this information so that the Member could never make anyone feel like this again.

The Student stated that the first time she spent time alone with the Member was when he took her to the crisis unit at the hospital. When they were done, he took her to a Subway sandwich shop before bringing her home and speaking to her mother. Before he left, he gave her a “caring” hug. The Student indicated to Ms. Vezina that she first began to feel uncomfortable when they started talking on Facebook. She stated that the Member used names such as “hon” and “cutie pie” and made comments about sitting on his “deck in (his) boxers with (his) third beer, adding that they both signed off on Facebook with the word “bye, sexy”. The Student told Ms. Vezina that she no longer had the messages as her boyfriend had seen the Facebook correspondence, gotten upset and deleted them.

Ms. Vezina asked the Student if anything at school had made her feel uncomfortable, and the Student responded that the Member would make contact with her leg when they were sitting together, with him sliding his leg towards hers so that they would be touching. The Student indicated that this was when she really started to like him.

Ms. Vezina testified that the Student spoke to the time that she and the Member were alone in his home. The Student stated that the Member’s wife was out with their daughter and that the Member showed her around the house. When the counselor asked the Student to describe the bedroom, the Student gave a very vivid description of the room and went on to describe that she had butterflies and was afraid Ms. Bussineau, the Member’s wife, would come home. The Student stated that while she was sitting on his bed, the Member’s hand ended up on her leg, and he was kissing her, touching her and stopped and touched the Student’s crotch and breast. The Student indicated telling the Member that she did not want to have intercourse right then and wanted to wait, and nothing further happened. She told the superintendent and counselor that she was scared at the time, adding that the Member told her that he never wanted to lose her and advised her that she should not tell anybody about this because then they would lose each other. Afterward, the Member and Student went downstairs and made pizza, and the Student stated that the Member did not seem to feel awkward making pizza when his wife came home. Ms. Vezina testified that the Student told them about her confusion and how she wanted the Member to be her teacher but without “all the other things”. She stated that she felt harassed.

The Student also stated that there were times when she would come early or leave late, and she and the Member would be alone at the School. She stated that she would “touch his bum” and that the Member would tell her, while smiling, not to do that at school. Ms. Vezina described the Student’s demeanour during this third meeting, stating that she was very emotional but did not have the same anger as in the previous two interviews.

Third Interview with the Member, September 27, 2010

Using her summary from the meeting (Exhibit 3, Tab 1, p. 212), Ms. Vezina testified regarding the third time she sat down with the Member. The witness indicated that she was accompanied by another superintendent of education and that the Member, his union president and the provincial representative, Nancianne Spear (“Ms. Spear”) were present at the meeting. Ms. Vezina informed them of the information she had received from the Student, particularly the inappropriate sexual contact that occurred when the Member and the Student were alone in his home. The Member was asked if he wanted to respond to the allegation, and Ms. Spear responded that the Member had been advised by legal counsel not to comment on the matter. The superintendents went on to tell the attendees that they had contacted the police and the College, adding that the Board’s investigation would be separate from those of the police and the College. The superintendents indicated to the Member and his representatives that they would be bringing a recommendation to the Board, that the possibility of termination was on the table and that the Member had the right to attend the meeting and make representations.

Conclusions of the School Board Investigation

Ms. Vezina testified that she sent the Member a letter dated October 7, 2010 advising him that she was bringing a recommendation to the Board that his employment be terminated. Ms. Vezina stated that enclosed with the letter was a summary investigation chart, explaining that she prepared the chart to summarize the areas of concern, key questions asked during the interviews and the evidence gathered from witnesses for the Board’s senior team and trustees. Ms. Vezina stated that it took a tremendous amount of time to prepare, adding that this process was something that had to be taken seriously as it involved “a person’s life”. The witness testified that the summary investigation chart was an accurate reflection of the interviews she had conducted and the conclusions she or her colleagues had drawn.

Ms. Vezina further stated that a letter from the director of education dated October 29, 2010 was sent to the Member advising him that the board of trustees had passed a motion terminating his employment, effective October 13, 2010.

Cross-examination of Ms. Vezina

During cross-examination by Member’s counsel, Ms. Vezina stated that prior to her investigation into the Member’s conduct, she had conducted three or four other investigations for the Board. The witness indicated that in terms of investigations training, she had attended workshops through the Ontario Public Supervisory Officials’ Association and had training through her superintendent and principal courses.

Acknowledging that the School is located in [XXX], Ms. Vezina confirmed that during the 2009-2010 academic year, the School moved from [XXX] to another building that used to be an elementary school, located right across from [XXX]. She indicated that the Member lived in [XXX] about 40 to 45 kilometres from [XXX].

The witness also spoke to the School’s schedule, indicating that the preparation period for teachers was 11:00 a.m. to 12:00 p.m. Ms. Vezina went on to confirm that Ms. Trudel, the school attendance counselor, was assigned to a number of schools, including the School.

The superintendent stated that before the hearing, she had reviewed her binder of personal notes. She indicated that she had not spoken to any of the individuals whom she had interviewed during the investigation about the evidence they had given since their interviews but stated that she had spoken to Mr. McCabe. Ms. Vezina and Mr. McCabe had both been interviewed by counsel for the College, and before these interviews, they conducted a very quick overview of the documents in Exhibit 3.

Ms. Vezina stated that she had worked with her secretary to create the Interview Schedule for the investigation (Exhibit 3, Tab, p. 1), the tables of witness contact information (pp. 2-3) and the schedule for May 18 interviews (p.4). Her secretary had physically input the information into the charts, while she reviewed the documents.

During cross-examination, Ms. Vezina described the process by which she and the principal, Mr. McCabe, prepared interview summaries. She stated that they would sit down with their notes and work on the summaries using her computer, comparing information and trying to fill in each other’s blanks. The witness indicated that they would typically work on a summary on the same day as the interview but that, at the beginning of the investigation, they might have prepared a few of the summaries the day after the meeting took place. The witness stated that there was no interview summary for the meeting with Mr. Gregory as the meeting occurred early on in the investigation, and she stated that she could not specifically remember the exact time and date she wrote the summaries for the first interview with the Student and the first interview with the Member. With regard to her first interview with the Student, the witness indicated that since she did not take notes during this meeting, the interview summary was generated using the principal’s notes and her recollection.

Ms. Vezina confirmed that the School offers individualized learning and personal instruction to students and agreed with the assertion of the Member’s counsel that the Board is responsible for the education of students, including accessible education for a variety of learners and special education. When questioned regarding IEPs, the witness confirmed that the Identification, Placement, and Review Committee (the “IPRC”) identifies and evaluates students that have or may have exceptionalities. She recognized, however, that a school board might sometimes deliver special education services to students who have not been identified by the IPRC.

She stated that teachers are responsible for updating IEPs and that special education resource teachers (“SERTs”) oversee this process. Acknowledging that IEPs are typically updated every year to keep up with the evolving needs of students, Ms. Vezina indicated that, while the Student was enrolled in school at the beginning of the 2009-2010 school year, her IEP had not been updated at the time.

Recognizing that students’ learning styles might change over time, Ms. Vezina agreed with the assertion of Member’s counsel that a teacher may be required to use different teaching styles (differentiated instruction) in his or her duty to be responsive to the needs of each student, regardless of whether a student has an IEP or not. The witness acknowledged that a teacher’s role may involve differentiating a lesson, giving a student extra time for assignments or tests or moving the location of a student. When directed to examine the Student’s 2008-2009 IEP (Exhibit 3, Tab 6, 344-346), Ms. Vezina recognized that general classroom accommodations included “extra test-taking time, rephrasing and restating of instructions and preferential seating, away from distractions and where the teacher spends the majority of the time doing the teaching of the lesson”. She agreed with the suggestion of Member’s counsel that moving the Student’s desk to a particular place in the classroom was an appropriate accommodation. Although Ms. Vezina stated that teachers who intend to change his or her approach to instruction should be contacting the SERT, principal and support team within a school to formalize the process, she confirmed that there was no SERT on site at the School in the 2009-2010 academic year.

Ms. Vezina was questioned regarding her investigation into the Student’s literacy test score. The witness confirmed that she had not met the Student prior to interviewing her about the Member’s conduct and had never taught her. Ms. Vezina indicated that while she heard about the Student’s performance through Ms. Johnson, she had never witnessed Ms. Johnson teaching the Student. The superintendent acknowledged that since any information she had regarding the Student’s abilities came from her old 2008-2009 IEP, her student record and other people, she had no direct, firsthand knowledge of the Student’s learning styles or exceptionalities. Ms. Vezina stated that she reviewed the Student’s 2008-2009 IEP as part of the investigation, recognizing that the document indicated that the IPRC last met regarding the Student in 2007, three years before the Student wrote the literacy test. Ms. Vezina also indicated that during the 2008-2009 school year, the Student was at another school, [XXX], which had regular classes.

The witness acknowledged that she did not actually see the Student’s 2009-2010 literacy test and never looked at the list of 90 students from the School and [XXX] who took the test that year. When asked if this meant she could not speak to the demographics or abilities of the students who took the test, Ms. Vezina responded that, since [XXX] itself was a regular high school, she assumed that the cohort would be similar to that of a regular high school. However, the witness admitted that this statement was an assumption.

Ms. Vezina indicated that as part of the investigation into the Student’s literacy score, there was a review of the Student’s work samples (Exhibit 3, Tab 5). When asked why the work samples did not include the assignment questions, the witness stated that the purpose of the samples was to look at the Student’s writing but acknowledged that there was no review of the Student’s work in the context of assignment instructions and test questions.

The superintendent confirmed that it was Ms. Johnson, and not the Member, who physically input the Student’s testing accommodations into the database. In response to the assertion of Member’s counsel that she was not in a position to say whether the Student’s score reflected her true abilities as she never saw the actual test, Ms. Vezina stated that her point was that the score did not reflect the Student’s marks.

When questioned about her first interview with the Member, the superintendent stated that there were some details that appeared in her handwritten notes that did not appear in the interview summary because it was a synopsis of the meeting and not intended to be a word-for-word description. She agreed with the proposition of Member’s counsel that her handwritten notes would be more accurate than the summaries.

Ms. Vezina stated that during the first interview with the Member, the Member stated that, after learning of the Student’s [XXX], he tended to her [XXX] and referred her to Ms. Trudel, the school attendance counselor. Ms. Vezina testified that she did not interview Ms. Trudel, the Student or other staff about the Student’s [XXX] as she was satisfied with the Member’s response on the issue. Ms. Vezina stated that while she was not sure whether there was a written policy or protocol regarding student [XXX], teachers would know to report these matters to the school and attendance counselor.

Ms. Vezina was directed to examine a version of the Student’s psycho-educational assessment report (Exhibit 3, Tab 6, pp. 352-356), which referenced the Student’s “lackluster approach” towards school. When asked if she thought that by correcting her lackluster approach and attendance, the Student could have improved academic performance, the witness responded that this may be the case. Looking at the report’s recommendation that oral examinations with multiple choice or short answers may be more suited for the Student, Ms. Vezina agreed that this form of examination would allow the Student to be more successful.

With regard to her interview with Mr. Nevins, Ms. Vezina confirmed that two students approached the teacher about the Member buying the Student birth control. The witness stated that she did not interview these students as she had already received a response from the Member about the matter. The witness stated that she believed there were less than ten students in his class, and when questioned as to why she did not interview all the students from the Member’s class, Ms. Vezina responded that she was not looking into his performance as a teacher. The witness acknowledged, however, that these students might have had an opportunity to observe the Member and the Student. Ms. Vezina testified to attending the Member’s class to examine the positioning of the Student’s desk and to look into concerns from students about the attention being given to the Student but indicated that she did not interview students from the Member’s classroom during her visit. Rather, she relied on the teachers’ accounts in this matter. When Member’s counsel asked her if this meant she had lost the opportunity to test the truth of the students’ reports as she was hearing second-hand information, Ms. Vezina stated that she trusted the teachers to give her this information. She acknowledged, however, that the teachers were not in the classroom every day with the Member. Ms. Vezina also confirmed that she had never reviewed the electronic messages between the Member and the Student and that her knowledge of their correspondence came from other people.

At the end of her cross-examination, Ms. Vezina stated she was aware that during the course of the investigation, Mr. McCabe had directed a teacher to drive the Student alone in her car back to the School, explaining that they did not want the Student to go back by herself.

Testimony of the Student

The Student testified behind a witness screen, which prevented her from seeing the Member while giving evidence. This accommodation was provided in accordance with Rule 13.06 of the Committee’s Rules of Procedure.

The Student is currently [XXX] years old and attends a high school in [XXX], Ontario. She testified that during the 2009-2010 school year, she attended the School, where classes ran from 12:30 p.m. to 4:30 p.m. and were broken into two blocks. The witness stated that the Member was her [XXX] teacher and that it was originally arranged so that she had him for the first block of the afternoon and spent the second block in [XXX] with a different teacher. The Student testified that since she enjoyed the Member as a teacher, she later obtained permission from the School principal and her [XXX] teacher to spend both blocks in the Member’s classroom.

The Student stated that she sat at the front of the Member’s class and would go up whenever she needed help. As she needed help frequently, the Student eventually had a desk right beside the Member’s desk, at the front of the classroom. The witness indicated that she had not observed other students being given this opportunity and that they commented on the new arrangement. The Student testified that the Member’s extra attention was helpful to her in terms of her schoolwork as she did not like working alone and enjoyed having a teacher’s support for every question. The Student further testified that there were times when she was sitting beside the Member at his desk, and she would pull her chair up beside his and brush her leg against him, explaining that she acted in this manner because she liked him. The witness stated that the Member would “kind of just let it slide”.

The Student gave testimony that during the fall of 2009, she did not see the Member outside of his classroom but would go to school early, at around 11:00 a.m., to spend time with the teacher before class started. The witness stated that during these meetings, which probably occurred from Monday to Friday, there was no one else in the classroom, and they would talk about her schoolwork or her personal life. She told the Member about her fights with her boyfriend, her [XXX], adding that it was helpful to speak to the Member about these issues.

The Student stated that during the year, she friend-requested the Member on Facebook, and he accepted the request. The two began communicating over the social media network, with the Student messaging him once every couple of days, after school and on weekends. The Student testified that their Facebook conversations included discussions about what they were doing at the moment and how their respective days were going. The witness stated that the Member would call her names, such as “cutie pie” and “sweetie pie”, which she liked. One night, the Student asked the Member over Facebook what he was doing, and he responded that he was sitting in his boxers having a beer, while his wife was sleeping.

Speaking to the issue of her [XXX], the Student described an instance in which she told the Member that she did not want to go home for fear that she would hurt herself. The Member then brought her to the hospital, where the Student spoke to someone and was told that she was fine to go home.

In terms of other interactions that she had with the Member outside of school, the Student indicated that she had babysat for the teacher. The witness testified to one incident in which the Member picked her up from her house and drove to his mother’s house to help her out with something, but his mother was not home. Afterward, the Member drove them to go buy paint before going to his house, where the Student was going to babysit his daughter.

The Student stated she would babysit for three to four hours and would be paid around $40. She would ask the Member to hold on to the payment for her so that she could get it from him when she needed money later.

The Student gave testimony that on one occasion, she told the Member that she thought she might be pregnant, so he brought her to the pharmacy and gave her $40 to buy Plan B (the morning-after pill) but did not go into the store with her. The witness stated that the Member had given her his own money and that the $40 did not come from her babysitting payment.

The Student testified that she had been to the Member’s house three times. The first time, the Member picked the Student up from her mother’s home and drove her to his place for dinner and to meet his wife and daughter. Afterward, he drove her home. The second time, the Student babysat the Member’s daughter for about two-and- half to three hours, while the Member and his wife were out. The third time, the Student went to the Member’s house to work on her literacy test as he had invited her over to study. The witness indicated that while the Member was not her English teacher, she thought his wife might have been an English teacher.

The Student stated that on the day of her third visit, the Member’s wife and child were not home when they first arrived at his house. The Member asked the Student to come with him upstairs, so she went up. The Member sat down on the bed, and the Student did the same. The Member then put his hand on her leg, started to kiss her and put his hand on her breast outside of her shirt. At this point, the Student told the Member that she was scared and that she thought his wife was going to come home. The witness indicated that the interaction on the bed lasted less than thirty seconds and that it made her feel uncomfortable. The Student stated that since she liked the Member, in her mind, she might have wanted something like this to happen, but when it actually happened, she realized that she did not want this.

The Student stated that after this incident, she and the Member went back downstairs. She did not end up studying for her literacy test that day as she felt nervous and uncomfortable and wanted to go home. The Member and the Student did not talk about the encounter ever again. The Student did not report the matter to the police or the School at the time as she did not want the Member to get in trouble.

The Student also testified regarding the literacy test that she took in April 2010. She stated that during the test, she and the Member were alone in his classroom, and she sat on one side of the desk, while he sat on the other side. The Member would read off a story or question; the Student would answer, and the Member would write down her answer. The Student indicated that she had never had a scribe arrangement with another teacher before.

The Student described a subsequent incident in May 2010 when she went to a [XXX] with the Member. The Student had been suspended and was not allowed to be on School property. During her suspension, she communicated with the Member through Facebook, and he told her that he would bring her for coffee. The day they went to [XXX], the Member picked the Student up on the side of the street where her mother’s house was located, and they had coffee and discussed how she would be back in school in a couple of days. The Student stated that she did not see anyone she knew while they were at [XXX]. When asked about her meetings with Ms. Vezina and Mr. McCabe in May 2010, the witness stated that she informed them there were no incidents prior to the [XXX] meeting because she wanted to keep the Member as a teacher and did not want to get him in trouble.

The Student testified that in the summer of 2010, she was fighting a lot with her boyfriend, and he wanted to break up with her. She was very unstable at the time and began to [XXX] herself. At one point, the police and an ambulance were called to her mother’s house, and the Student was sent to the hospital for 72 hours. The witness testified that during her stay at the hospital, she did not tell anyone about the incident in the Member’s bedroom.

The Student gave testimony that in the following fall, she began attending [XXX] School, where she had a counselor named Marnie Tarantini (“Ms. Tarantini”). The Student told Ms. Tarantini that she did not feel good and wanted to [XXX], so the counselor brought her to a crisis service at the hospital. Afterward, when they were discussing why she did not feel well, the Student told Ms. Tarantini what had happened with the Member. The Student subsequently spoke to Ms. Vezina and Mr. McCabe about the matter during another meeting. The witness stated that she originally did not want to come forward about the bedroom incident as she had still wanted to be able to communicate with the Member at the time. However, after the [XXX] incident and school meetings, the Member messaged her on Facebook to tell her that he could not communicate with her anymore. The Student indicated that she had not spoken to the Member in a long time and holding everything inside was causing her problems, so she decided to tell someone. Although it was embarrassing to talk about the matter, the Student felt like something had been lifted off her chest.

The Student testified that she later went to the police station, where her interview was recorded. The witness stated that although she did not press charges against the Member because she wanted the matter to be over and done with, she came to testify before the Committee to explain what had happened and to tell the truth.

Cross-examination

The Student was cross-examined by counsel for the Member regarding the evidence that she had given. The witness stated that in her first year of high school, she attended [-[XXX]. She did not obtain enough credits to pass grade [XXX] at this school, so in the following year, she went to [XXX]. [XXX] functioned like a regular high school and had classes in four blocks from the morning to 3:00 p.m. The Student testified that she had trouble keeping up with her assignments at [XXX], so she decided to pursue independent learning. In the fall of 2009, the Student began attending the School, which was different in that classes started at around noon and ended around 4:00 p.m. The witness indicated that during the fall semester, the School was located at [XXX] but moved to another location in January 2010.

The Student confirmed that she was enrolled in the Member’s class during the fall of 2009 but did not attend the School regularly that semester. She began to attend the Member’s class regularly in the next term, when the School moved to its new location. The Student indicated that she could work at her own pace at the School, adding that students in the Member’s classroom would be working on different subjects from one another and that the classes at the School were a lot smaller in number than classes at [XXX]. The Student testified that she had a friend, [XXX], who worked on English while she was in the Member’s classroom.

When shown her 2008-2009 IEP (Exhibit 3, Tab 6, pp. 344-346), the Student initially stated that she did not recall the Member showing her this document in February 2010 but did not disagree that this event could have taken place. The witness further confirmed that she had difficulty with writing while she was at the School and that she was diagnosed with a learning disability.

The Student agreed with the assertion of Member’s counsel that in the winter of 2010, she struggled with a number of personal issues and talked to the Member in February about some of these issues, including her [XXX], her medication changes and her [XXX]. The witness indicated recalling the Member seeing her [XXX], giving her bandages for them, talking to her about [XXX] and recommending that she speak with Ms. Trudel, the school attendance counselor. When asked if she had spoken to the Member about her [XXX] use, the Student stated that she never said this to him but confirmed that she had talked to the teacher in February 2010 about having been treated for an [XXX] addiction.

The Student agreed with the assertion of Member’s counsel that in February 2010, she made a decision to be more successful in school and that the Member had told her that he wanted her to succeed. The witness indicated recalling a conversation in which the Member spoke to her about her limitations and strengths while showing her the 2008-2009 IEP. The Student agreed with counsel’s suggestion that between February and May 2010, she began attending school more regularly and was improving in her school work and that the Member helped her outside of class hours.

The Student was questioned regarding her visits to the Member’s home. Although the witness could not remember the exact date of the first visit, she did not disagree with the assertion of Member’s counsel that it occurred on March 17, 2010, a Wednesday during March break. Confirming that the first time she went to the Member’s home, the Member picked her up and went to get a trailer from his mother’s place, the Student specified that she did not go inside his mother’s house. The witness acknowledged that at the time of her first visit to the Member’s home, his daughter was just under two and still in diapers. The daughter’s room, with its crib and change table, was on the second floor across from the bedroom of the Member and his wife. The Student agreed with counsel’s suggestion that the second floor was quite small and that it was possible to see across the hall.

Although the witness had previously testified to having visited the Member’s home three times, Member’s counsel contended that she had actually been there four times. When counsel for the Member described an instance in which the Student looked after the Member’s daughter while he was working in the garage, the witness confirmed that this was indeed her second visit and that her third visit was the time she babysat the Member’s daughter while he and his wife were out for dinner. When asked whether she had fed the Member’s daughter or changed her diaper during the third visit, the Student responded that she believed she gave the baby a snack and changed her diaper once. The Student confirmed that during her last visit, she went over to the Member’s place to study for the literacy test, and the witness recognized that this detail placed the fourth visit sometime before April 9, 2010, the date the test was administered. The witness indicated that this session was not the only time she had studied for the test as the Member had also helped her prepare for it at school.

When questioned about the Member taking her to a crisis service, the Student indicated that she went to [XXX] Area Hospital and that she was quite upset at the time of the incident. While she recalled the Member placing phone calls to his wife while they were in his car, she could not remember him calling a Board teacher or employee on this occasion. The witness testified that while she was at the hospital, she did not tell anyone about the Member touching her. Afterward, the Member drove the Student home and came inside to speak to her mother, with whom the Student had a difficult relationship. Following the hospital visit, the Member put the Student in touch with Theresa Coccimiglio, a drug counselor with Algoma Family Services, and that summer, the Student had a couple of appointments with the counselor.

The Student confirmed that during her two interviews with Mr. McCabe and Ms. Vezina in May 2010 (Exhibit 3, Tab 1, pp. 29, 99-100, Mr. McCabe’s notes), she indicated to them that the Member had not said or done anything to make her feel uncomfortable. In a separate conversation with Ms. Trudel, the Student told the counselor about her Facebook communication with the Member but stated that she would lie to the Board about the matter.

The Student indicated that after her meetings with Mr. McCabe and Ms. Vezina, the Member was no longer her teacher. Some of the other students commented on Facebook that the Member was no longer at the School and blamed the Student for his absence. Later, when the Student was interviewed by the police, she told them that some students had called her a “skank” on Facebook. When asked by Member’s counsel whether it was fair that she was being blamed, the witness stated that it was not fair.

The Student confirmed in cross-examination that she told the police that her boyfriend did not like the Member and that they fought about him. When her boyfriend told her he was going to leave her, the Student became quite upset, and after attempting to [XXX] herself, she ended up having to go to the hospital. The witness agreed with the assertion of Member’s counsel that it was during this period of relationship trouble and Facebook blame that she first made the allegation that the Member had touched her.

The Student indicated that in the fall of 2010, she began attending [XXX] School, where she met Ms. Tarantini, a counselor. The Student initially told Ms. Tarantini that she had a crush on the Member but that nothing had happened. Later, she told the counselor at her new school that the Member had touched her. The Student subsequently disclosed the matter to Ms. Coccimiglio from Algoma Family Services and Ms. Vezina. Following this disclosure, Ms. Coccimiglio arranged for the Student to go to the police station for an interview.

Although the witness recalled being quite concerned when the police officer informed her that it was a serious offence to make a false statement to the police or to wrongly accuse someone of a crime, she stated that her concern was about accurately reporting the specific details of the matter. During this interview, the Student told the police that when the Member kissed her in his home, she indicated to him that she was afraid his wife would come home and that she did not want this to happen. Member’s counsel suggested that the Student had provided a different account to Ms. Vezina in that during her interview with the superintendent, the Student reported telling the Member that she did not want to have intercourse but wanted to wait. The witness could not recall making this statement but agreed that it was possible that this was her report to Ms. Vezina.

The Student confirmed that she had also advised the police that while she was at the Member’s house, he called his wife to ask her when she would be coming home, but acknowledged that she did not tell Ms. Vezina about this call.

The Student further recalled advising the police that the Member had only ever tried anything during the day of the bedroom incident. She recognized, however, that she had previously told Ms. Vezina that the Member would make contact with her leg in class and agreed that this statement differed from her testimony earlier during the hearing that she would brush her own leg up against his.

When questioned about the frequency of her Facebook communication with the Member, the Student confirmed that she had told the police that she corresponded with the teacher every night. The Student acknowledged that although she originally told Ms. Vezina they corresponded a couple of times a week, she later reported to the superintendent that she talked to the Member over the social media platform every night and every morning. The witness conceded that she did not remember how often she communicated with the Member over Facebook.

Further, the Student recalled telling the police that her boyfriend and her friend [XXX] had seen her Facebook messages with the Member. However, she stated that another friend, [XXX]., had actually also seen the correspondence. The Student testified that at the end of her interview with the police, she told them that she did not want the Member to be charged.

After her police interview, the Student was scheduled to attend two further interviews with the Crown or the police, but she did not attend these meetings as she did not want to give evidence about the Member.

When counsel for the Member suggested to the Student that the Member never touched or kissed her but that she had invented these allegations because everyone was already assuming something had happened, the witness reiterated that the allegations were true.

Re-examination

During re-examination by counsel for the College, the Student confirmed that she currently lives in [XXX], Ontario but that the alleged events took place in [XXX]. The Student stated that the girls who had called her a “skank” on Facebook live in [XXX], not [XXX], and that they are not her friends. The witness indicated that she is no longer with her boyfriend from 2010 as they broke up about two years ago.

Defence Witnesses

Counsel for the Member called one witness, the Member, who testified regarding the events of the 2009-2010 school year.

Testimony of the Member

The Member testified that he currently owns his own contracting firm, and since 2008, he has been living with his wife and his daughter in [XXX], a small town approximately 40 kilometres from [XXX]. During the 2009-2010 school year, he did not have friends or relatives who lived nearby, with the exception of one cousin ten minutes away. The Member was formerly a teacher for the Board and testified that the document Member Registration Form (Exhibit 2) accurately reflected his educational background, including his basic and additional qualifications as a teacher. The witness previously taught in different schools in [XXX], including the School.

The Member explained that the School was an [XXX] program, where students could continuously enroll and do independent study, starting and finishing courses at their own pace. Unlike a typical high school with four different classes and four different teachers giving lessons, the Member would be with one block of eight to ten students for the first half of the day and another block of eight to ten students for the second half of the day. Students would be working on different courses on their own and would ask for the teacher’s help when they needed it.

The Member explained that his work schedule at the School was from 11:00 a.m. to 5:00 p.m., with his preparation period being from 11:00 a.m. to 12:00 p.m. The student population at the School differed a bit from the demographics of a regular school as there were students who had not been successful in regular programming, students who only wanted to complete one or two credits for graduation and students who needed a specific class for a post-secondary program. There were also a fair number of single mothers, and as such, the School building housed child care services.

The Member stated that the process of accommodating students with exceptionalities at the School was somewhat different from the process at a regular high school. In a regular classroom, the teacher could use different instructional methods, such as choosing between lectures or hands-on labs. By contrast, the Member, who was working in an independent-study classroom, would be more restricted by the lessons the students were working on and would accommodate students by rewording questions and changing a few assignments.

The Member testified that his classroom was right next to the classroom of another teacher, Beverly Hudson, and directly across from one of the daycares. He typically taught with his door open, and even when he was not teaching, he would generally keep his door open if he was in the room. The witness explained that in the second half of the 2009-2010 academic year, the School moved from [XXX] to another site. In the first few weeks after the move, Mr. McCabe, whose office was located in [XXX], would visit the new site a couple times a week to ensure that the transition was going smoothly but visited less as time went on.

The Member stated that there were other employees at the new site, including Ms. Trudel, who visited about once a week, various daycare staff and Marla, a care staff member who was often in the Member’s classroom at 5:00 p.m. or just before 5:00 p.m. for her cleaning rounds.

The Member described his classroom at the new site, stating that there was a bank of windows along one wall, across from the door, where the Member had his desk and filing cabinets with lesson material. The students’ trapezoidal-shaped desks could seat two people and were arranged in columns facing the blackboard and the Member’s desk.

The Member spoke to how he obtained information about the learning disabilities and exceptionalities of students and the methods he used to assist them. The Member would learn about the needs of his students by speaking to them and examining their Ontario Student Record, psycho-educational reports and IEPs. The witness indicated that while IEPs were helpful in that they laid out a student’s work habits, strengths and areas of weaknesses and listed the accommodations that could help the student succeed, it was his experience that not every student that required assistance had an IEP. The Member would sometimes notice difficulties when marking a student’s work or assisting a student, and he felt that it was his job to help his students succeed, regardless of whether they had been formally identified or had an IEP. Some students could require different avenues of assessment, including written or oral tests.

The Member testified that he first met the Student in October 2009 as she was a friend of a student in his class. The Student later enrolled in his [XXX] course, and at first, she attended sporadically. After the School moved to its new location, there came a point when she started becoming more successful in her [XXX] course, attending more frequently and submitting more lessons. The Member set up an isolated work station for the Student in his classroom, in the corner of the room between the filing cabinets and the corner of the two walls. Her desk was located behind and to the left of the Member’s desk, about six feet from his seated position. The Student faced a 90-degree difference towards the exterior wall. The work station was meant to help the easily distracted student focus, and the Student was becoming more successful academically. Later, when the Student was also enrolled in Mr. Nevins’ class, she asked to stay at her station in the Member’s room during the second block to work on her careers lesson there. No Board employee ever raised the issue of the placement of the Student’s desk with the Member, though two female students, [XXX]. and [XXX]., did discuss the matter with him.

The Member testified that in February 2010, he reviewed the Student’s Ontario Student Record, her 2008-2009 IEP (Exhibit 3, Tab 6, pp. 344-346) and her Psycho-Educational Assessment Report (Exhibit 4). The 2008-2009 IEP made the teacher aware of the Student’s difficulties in writing, spelling and math as well as her behavioural and emotional needs. The IEP listed the Student’s classroom accommodations, which included preferential seating away from distractions. The witness testified that he was not the author of the IEP but that he understood that a special education resource teacher generated IEPs, while classroom teachers could have input into the matter once the plans were updated. The Member stated that the 2008-2009 IEP was prepared while the Student was at another school, [XXX], adding that the three-page version of the IEP in the document brief presented at the hearing (Exhibit 3) was not complete. According to the Member, the Student’s IEP actually contained a fourth page, the program page. The program page indicated that the Student was allowed to have a co-writer, and the Member took this to mean that the dictation of an oral answer was an acceptable accommodation.

The Member testified that the Student’s 2008-2009 IEP was signed by a principal in September 2008. He explained that in regular high schools, IEPs were generally signed off every year and updates would be made, if necessary. In instances where changes were not needed, the parent would receive their child’s IEP, sign the document and bring it back to the school. The Member stated that he did not recall seeing updated IEPs at the School.

The Member explained that the Identification, Placement and Review Committee had to include an administrator as well as a special education resource teacher. The committee would identify whether a student had a formal learning disability and would recommend certain streams, such as academic, applied or locally developed courses or would advise that a student have resource support. The committee was also responsible for making any needed changes to an IEP. Noting that the Student’s 2008-2009 IEP indicated that the Student’s placement was “regular class with resource assistance”, the Member stated that this reference meant the review committee felt that the Student could be successful in a regular classroom with resource assistance.

According to the witness, resource assistance could either mean that the Student would have a resource period during her four classes or that she would stay in class for the lesson portion of a course before going to a resource class to get assistance. The Member stated that [XXX], the school that the Student attended in 2008-2009, was a “regular” semestered program that was different from the School.

Speaking to the Student’s Psycho-Educational Assessment Report, the Member testified that he had read and interpreted the document, looking at the summaries and recommendations in the report as the rationale for the accommodations in the Student’s 2008-2009 IEP.

After reviewing the documents himself, the Member spoke to the Student and showed her the IEP, her psycho-educational report and her Ontario Student Record. The Student had previously expressed that she did not think that post-secondary education was in her future, and the Member wanted to convince her otherwise by using these assessments, which stated that she had the potential to succeed.

The Member went on to testify that the Student would spend time in his classroom outside of class hours, typically two to three times a week. The Student would sometimes come to his classroom during his preparation period before class or after the students were released for the day. During these instances, the Student would work on course material or would just come to chat. On a few occasions, the Student would come to his classroom outside of class hours to work on the literacy test, and the Member would help her with assignments and give her tips on how to organize her thoughts and construct paragraphs.

In reviewing the Student’s work samples from Ms. Vezina’s literacy test investigation, the witness stated that he believed the samples were written answers from his [XXX] course, which included reading comprehension assignments where students would copy and paste answers from text. When asked if the samples demonstrated the Student’s academic ability, the Member indicated that it was difficult to determine this given that the work samples did not include the lesson material upon which the answers were based.

The Member testified that in mid-to-late February 2010, he became concerned when he observed [XXX]. The teacher offered her [XXX] and [XXX] for the [XXX] and contacted Ms. Trudel, as the Student and the school attendance counselor had an ongoing relationship. The Member was also concerned when the Student disclosed that she was on medication for [XXX] and that her nurse had recently given her new medication. On one occasion in early April, when the Student was in the Member’s classroom, it appeared to the Member that the Student’s [XXX] was quite severe as she was crying and seemed inconsolable. Worried that the Student was going to hurt herself, the Member talked the Student into going to a crisis service.

At this time, the Member tried to reach Mr. McCabe at [XXX] but was unsuccessful. He then tried to contact colleagues from [XXX] School, the previous school where he had worked, and was able to get in touch with Kim Barnes. His former colleague advised him to go to one of the sites of the [XXX] area hospitals and called the crisis service ahead of time for him. The Member and the Student then went to the hospital, where the Student saw a caseworker nurse and a doctor. During this visit, the Member left the Student with the caseworker nurse for about ten to fifteen minutes in order to move his car and call his wife about what was happening.

After the trip to the hospital, the Member drove the Student home and had a conversation with her mother to explain why he had taken the Student to a crisis service. During this conversation, the Student was not in the room, and the Member told her mother about the recent success her daughter had been achieving. The Member had also previously spoken to the Student’s mother on the phone in late February to give her positive feedback about her daughter.

The day after the trip to the crisis service, the Member spoke to Kim Barnes to thank her for her guidance. He also spoke to Ms. Coccimiglio, a drug counselor with Algoma Family Services as the Student had told him about her previous drug use, including her former [XXX] addiction and her recreational [XXX] use. The Member subsequently gave the Student Ms. Coccimiglio’s business card and allowed her to use the phone in the staff room to call the counselor.

The Member testified that the Student visited his home in [XXX] on four occasions. The Member would drive the Student alone in his car from her place in [XXX] to his house, which was a forty-five minute trip. One time when the Member was taking the Student to his house, he stopped at his mother’s place for approximately five minutes, but the Student did not enter the house. They then proceeded to the Member’s home in [XXX].

The first time the Student came to visit was in the middle of March break. The Student arrived in the early afternoon and was introduced to the Member’s wife and their daughter. She was given a tour of their home and was shown his daughter’s diapers, clothes and change table. The Member’s room was separated from his daughter’s room by a short hallway. The bedroom doors were usually open since the couple had a small child. After the tour, the Student played with the Member’s daughter, and at the end of the afternoon, the Member drove her home.

The Member testified that two or three days later, during the second weekend of March break, the Student went over to his place a second time. The Member picked the Student up from her home and drove her to his place. Initially, his wife and daughter were both at home, but shortly after the Student arrived, his wife left to buy groceries. The Member stayed on the property, in the detached garage, while the Student was with his daughter. However, he occasionally went into the house to make sure that things were okay. The Student stayed for about two or three hours before the Member drove her home.

A week later, the Student visited the Member’s home again. The Member picked her up from her place and drove her back to his home. The Student babysat his daughter, while he and his wife went out to eat at a restaurant. The Member then drove the Student home at around 6:30 or 7:00 p.m.

The witness stated that he chose the Student to babysit his daughter because he had observed her at the daycare across his classroom and was impressed by how she cared for children. When the Member attempted to pay the Student for her babysitting, she indicated that she did not want all the money right away as she was concerned that she would spend it too quickly; she was saving for her driver’s license and asked the Member to hold the money for her.

The Member testified that on one occasion, he drove the Student to a pharmacy. The witness stated that in retrospect, he probably should have simply given her advice instead of driving her to the pharmacy, which was unwarranted. In reference to the other instances when he drove the Student in his vehicle, the Member conceded that it was not appropriate to be alone and driving a student, particularly one of the opposite gender. He stated that he would not do it again.

The Member testified to the fourth time that the Student visited his home, a day in early April. On this occasion, he picked the Student up from her home and drove her to a [XXX], where they met his wife and daughter. The Student watched his daughter so that the Member and his wife could shop more effectively, and after they were done at the store, the Member’s wife and daughter went to run one more errand, while the Member took the Student back to their home to study for the literacy test. They were alone for twenty or thirty minutes before the Member’s wife and daughter came home. The Student stayed for dinner, and the Member then drove her home. The Member testified that there was no incident of sexual touching as the Student had alleged.

The Member testified that he was interviewed in May 2010 by Ms. Vezina. During these interviews, he only mentioned three occurrences in which the Student visited his house and was confused in his account to the superintendent about who was at his home and when. He did not mention the Student’s fourth visit during his interviews as he was nervous and had dates confused.

The witness testified that being alone with the Student at his house was a mistake, even though his goal was to help her with the literacy test. The Member stated that although he was not the Student’s English teacher, he was her classroom teacher, and in his experience at other schools, classroom teachers also helped students with the literacy test as it was a requirement for graduation.

The Member stated that when the list of students writing the literacy test came out, he noticed that the Student’s name was on a deferred list. The Member thought it would be a good idea for the Student to at least attempt the test, so he talked to her about it. When the Student agreed to write the test, the Member went to [XXX] to speak to Ms. Johnson, the literacy lead. He told Ms. Johnson that the Student wanted to write the test and mentioned that he wanted to provide reading and scribing accommodation as well as the possibility of extra test time. Ms. Johnson, as the literacy lead, had the login and password to the EQAO website where accommodations would be entered. The Member did not have access to this login and password information.

The witness stated that while he was at [XXX], he believed he also ran into Mr. McCabe and told him that the Student was going to write the test and that he wanted to provide accommodations for her.

On the day of her test, the Student took the test in the Member’s classroom. The witness explained that students who had readers or scribes would typically take the test in a different setting than the general student population. During the literacy test, the Member read the questions to the Student and re-read material at her request. The Student delivered oral answers, which the Member wrote down verbatim. The Member felt that the Student did well on her exam, completing the test without any extra time needed. The teacher had decided to scribe and read for the Student because he felt that it was appropriate based on her IEP, psycho-educational report, his classroom observations as well as the fact that she had a [XXX]. The Member stated that he did not play any role in marking the literacy test, and at the time of the Student’s test, he did not have access to an answer key.

The Member testified that he communicated with the Student using Facebook, stating that this correspondence began around the time he had her babysit, in early March. At first, they did not correspond very frequently, but in around April and May, they began to talk over Facebook a few times a week. In reference to the allegation that he had called the Student “cutie pie”, the teacher stated that he may have used this term but was not sure. The Member did admit, however, that on one occasion, he told the Student over Facebook that he was “in his boxers having a beer”. The witness recognized that this comment, as well as his other Facebook communications with the Student, was inappropriate.

In response to the Student’s statement that she made contact with his leg in his classroom, the Member stated that this contact did not happen.

The Member testified regarding his meeting with the Student at [XXX] on May 13, 2010. He explained that the Student had a shouting match with another teacher, Jen Strand (“Ms. Strand”), in which the Student used foul language. After returning to the Member’s classroom, the Student was agitated and went out to the parking lot, and the Member went to calm her down. The Member then spoke to Mr. Gregory, who was the guidance teacher.

Mr. Gregory and the vice-principal decided that the Student would be given a five-day suspension and would be required to apologize to Ms. Strand. On the Thursday of the Student’s suspension, the Member tried to contact her to discuss the importance of the apology to Ms. Strand. When he could not reach her by phone, he contacted her via Facebook and arranged to meet at a [XXX] near the Student’s home. The meeting at the coffee restaurant lasted approximately twenty to twenty-five minutes. The Member stated that he chose to meet at a [XXX] because the Student had not picked up when he called, and he did not want to have the conversation at her private home. Moreover, the coffee place was on his way to his father’s place, where he was heading. The Member stated that looking back, he realized that he should have attempted to go about the situation in another way, such as calling the Student a second time or contacting her mother.

The Member testified that he signed an Agreement and Undertaking on April 8, 2011 (Exhibit 5), promising not to teach or to seek or engage in any teaching employment until the College disposed of the complaint filed against him. The Member stated that he had respected the terms of the undertaking since the day he signed the document. The Member also indicated that he had never been charged by the police with respect to his interactions with the Student.

The Member testified that although his actions were intended to support the Student, he now understood that they were not appropriate. He regretted his actions and the effect they have had on the Student. The Member stated that looking back, he would have done many things differently, and in particular, would have relied more on the support team at his school. He stated that he realized the team at a school is not just there to support students but to provide guidance to teachers.

The Member stated that his actions have had an impact on his wife, who is a teacher for the same school board and has heard gossip from students and colleagues. He added that his daughter, who is now five, currently attends a school within the Board and that she will likely be aware of the alleged incidents one day in the future.

Cross-examination

During cross-examination by counsel for the College, the Member stated that toward the end of February 2010, the Student’s attendance had improved. The Member acknowledged that he had looked at the Student’s Ontario Student Record, stating that he would have done the same for other students as well. The teacher reviewed the Student’s psycho-educational report (Exhibit 4) and noted that she had been diagnosed with a [XXX] and had issues with behaviour and attendance. The report indicated that the Student had received many suspensions for persistent resistance to authority and for “conduct that was harmful to the well-being of others and to the moral tone of the school”, including throwing objects and inappropriate language. The document further stated that the Student’s brother was “out on his own”, that she was interested in dance and that her one wish was “to be smart”.

The Member acknowledged that the Academic Functioning chart in the Student’s psycho-educational report showed that she had very poor scores. In particular, she was in the second percentile for math and the first percentile for written language. The Member indicated, however, that while the scores were used to prove the Student’s learning disability, her cognitive ability would have been judged higher. The report also alluded to the Student’s significant social-emotional problems, her aggressive and defiant behaviour and her [XXX]. The Member confirmed that in February 2010, he shared the report’s recommendations with the Student to set up a plan for her and to instill some confidence in her.

The Member reiterated that on another occasion in February 2010, he observed [XXX]. He took the Student out in the hallway to speak with her, obtained first-aid supplies for her and then called Ms. Trudel, the school attendance counselor. After his two encounters with the Student in February 2010, the Member and the Student began to speak more often. The witness acknowledged that the Student saw him as someone who could be trusted.

The Member agreed with the statement of College counsel that the Student would sometimes linger about after class so that he would know that she wanted to talk to him. The Student would share personal information with the teacher, disclosing to him that her brother had left home and that she had previously been arrested for assaulting her mother.

The Member was also aware of the Student’s relationship with her boyfriend and her history of substance abuse, which included time in a methadone treatment centre for her [XXX] addiction. The Member acknowledged that he was probably overwhelmed by the amount of information she was giving him, as the Student had a variety of significant academic and personal problems. When asked by counsel whether he thought, at the time, that the information being shared was too personal and that boundaries ought to be in place, the Member replied that he had been concerned about these matters.

The Member confirmed that in April 2010, he brought the Student to a crisis service at the hospital as she had been crying inconsolably, and he had noticed a [XXX]. He was concerned that the Student would [XXX] herself.

The Member admitted that he had engaged in electronic communication with the Student via Facebook and that he had called her “hon” or “cutie pie”. He acknowledged that he had invited the Student to babysit at his home and to stay overnight at his place. The witness confirmed that when the Student would babysit for him, he would pick her up from her home, drive her to his home and drive her back. The Member recognized that this amounted to an hour-and-a-half round trip.

The Member stated that when he was interviewed by the Board regarding his babysitting arrangement with the Student, his recollection was “garbled” and inaccurate as he was mixing up the times when he was alone with the Student and the times he was not alone with her. In reference to the Student’s babysitting payment, the Member confirmed that she had asked him to hold onto the payment for her as she did not trust herself with the money but trusted him.

When the Student wanted to buy birth control, the Member gave her the remainder of her babysitting money to buy the product. The witness acknowledged that in hindsight, perhaps it was not right to hold onto her money and then give her the cash to buy birth control.

Examining the Student’s Credit Counselling Summary (Exhibit 3, Tab 6, p. 343), the Member confirmed that the Student did not have an active IEP for the 2009-2010 school year and that she had a high number of absences, including forty absences for [XXX], fifty-three absences for [XXX] and forty absences for [XXX]. In particular, the Student had been absent quite frequently in the fall term.

The witness acknowledged that the Student’s Provincial Report Card (Exhibit 3, Tab 6, p. 347) demonstrated that the Student’s grades were all below average at the school she had been attending. The Member confirmed that he had reviewed the Student’s 2008-2009 IEP in order to tailor his assistance to her in class and for the literacy test. When asked if he understood that the Student’s [XXX] was a diagnosis from a psychologist and that her IEP was applicable to the 2008-2009 school year, the Member responded that he did understand this. He also recognized that the IEP had been developed by a special education resource teacher from [XXX] named Cathy Schwindt-Lane and that classroom teachers generally participated in the development of an IEP.

The witness confirmed that an IEP was intended to inform current and future teachers of the accommodations a student would need. He also acknowledged that he was not a special education resource teacher or a psychologist.

The witness recognized that the Student’s 2008-2009 IEP stated that her needs would be adequately accommodated through the plan and that no additional actions were needed at the time. The Member also confirmed that the 2008-2009 document was not re-signed in the following year and that there was no report directing that the IEP be applied to the 2009-2010 school year. He stated, however, that the IEP was the most current one on file.

The Member indicated that students who did not need accommodations would write the literacy test in the gym in rows of desks, while students requiring accommodations would write the exam in the library. The Member acknowledged that the Student did not proceed in either of these ways as she wrote the test alone in his classroom. The witness was aware that the Student’s literacy test score was thirty points above the provincial median and the third highest mark in the school.

When questioned regarding the Student’s fourth visit to his home on April 4, 2010, the Member acknowledged that at this point, he was aware that the Student had an [XXX], [XXX], a [XXX], [XXX] and a volatile relationship with her mother. He knew that the Student [XXX] herself and that she had substance abuse problems. She smoked [XXX] almost every night and had gone through treatment for an [XXX] addiction. The Member stated that his daughter was about twenty-months old when the Student made her fourth visit to study for the literacy test. On this occasion, he and the Student were alone at his house for a period of time.

In response to College counsel’s suggestion that he found the Student attractive, the Member stated that she was an attractive young lady but that her appearance was not something to which he had paid attention. When asked if he was aware that this teenage girl “adored him” and had a crush on him, the witness replied that he was aware of the trust that she placed in him but stated that he did not know whether she had other feelings. The Member stated that it was possible she had these feelings but it was not something with which the Member concerned himself. It was not something that he cared to reciprocate or pursue, and it was not the reason he had her come over to his house that day.

In response to the assertion of College counsel that he had kissed the Student and touched her crotch and breast, the Member stated that this incident did not occur and that he did not make any sexual advances to the Student.

SUBMISSIONS OF COLLEGE COUNSEL

Counsel for the College stated that the allegations against the Member fell into three categories: literacy test accommodations, non-sexual boundary violations and sexual touching. Speaking to the literacy test allegation, College counsel submitted that the Member’s actions around the Student’s IEP were inappropriate, given that the document was not from the 2009-2010 school year. While there was no current IEP for that year, the absence of an updated plan was due to the fact that the Student barely showed up to school in the fall term. Counsel for the College also argued that the 2008-2009 IEP was carefully developed through a psychologist report, the expertise of a special education resource teacher and the participation of classroom teachers. As such, even if the Committee were to determine that the Member’s intentions were noble, the plan should not have been adjusted based on his subjective views.

With respect to the Member’s assertion that the IEP actually included a fourth page, College counsel reminded the Committee members that they had never seen this additional page, adding that the document produced for the hearing contained no concept of a reading and scribing accommodation. In the College’s view, the Member’s accommodations for the Student completely changed the nature of the test, turning it into an oral exam. The Student had never previously participated in a scribing arrangement, while Ms. Vezina, a superintendent of education, had never heard of a student having a reader as an accommodation. The Member’s reading and scribing accommodations were therefore much more than a slight adjustment based on observations over the course of a few months.

Counsel for the College further submitted that the Student’s actual test results should be a factor in deciding whether the Member’s conduct was appropriate. Counsel pointed to the Student’s Credit Counselling Summary (Exhibit 3, Tab 6, p. 343) and Provincial Report Card (p. 347), which indicated that her grades for reading and writing were 10 to 15 % below the average. The Student’s literacy test score, however, was thirty points above the provincial median and the third highest mark in the School. College counsel acknowledged that students are able to improve but stated that the Student’s score was entirely inconsistent with her grades. After all, the Student’s IEP would not have simply applied to her literacy test but her classroom work as well. Counsel for the College further stated that on the day the Student went over to the Member’s house for literacy tutoring, she became uncomfortable and never ended up studying for the test.

Touching on the issue of non-sexual boundary violations, College counsel stated that the Member had essentially admitted to the violations listed in paragraphs 4(c), 4(d) and 4(e) of the Notice of Hearing. He had admitted to engaging in electronic communication with the Student via Facebook, to calling her “cutie pie” and to inviting her to babysit and stay overnight at his home. The Member had also indicated that he should not have taken the Student to get birth control pills or held her money in the first place. Counsel for the College asserted that in light of these admissions, the Committee should find that the Member engaged in an inappropriate personal relationship with the Student, as alleged in paragraph 4(b) of the Notice of Hearing.

College counsel submitted that the Member’s non-sexual violations were connected to the allegation of sexual misconduct. The progression of the Member’s personal relationship with the Student pointed to a classic pattern of grooming, which culminated in sexual contact on April 4, 2010. Counsel for the College traced the steps of their relationship, stating that the Member first met the Student when she enrolled in his [XXX] class. After the Student decided to spend both blocks of the school day in the Member’s classroom, the Member moved her desk closer to his, and they began to have leg-to-leg contact. College counsel argued that the fact that two female students complained about the Student’s desk arrangement was evidence of preferential treatment.

Counsel for the College submitted that the Member then examined the Student’s record to develop a deeper understanding of her background. The Member learned about the Student’s [XXX], her history of aggressive and defiant behaviour, her strong desire “to be smart” and her academic difficulties. He then started driving the Student alone in his car and having very personal conversations with her. The Student began frequently showing up early and staying late at school to talk to the Member. During these conversations, the Member learned about the Student’s significant family troubles, her serious history of substance abuse, her [XXX] and her medication changes.

College counsel stated that after the Member became aware of these issues and observed [XXX], he still did not seem to think that he had gone too far and did not try to call in the School infrastructure to manage the situation. On the contrary, the teacher decided that the Student would make a good babysitter and began taking hour-and-a-half-long round trips to drive the Student between her home and his house. Counsel stated that at this point, the Student had been removed from the safety of the School and was at the Member’s house, forty-five minutes away from town.

Speaking to the Member’s interviews with Ms. Vezina, College counsel rejected the notion that the Member was genuinely mistaken when he told the superintendent that he had not been alone with the Student in his house. If the Member had simply been “mixed up” as he claimed, he would have reported incorrect dates or errand locations but would not have made an outright statement that he had not been alone with the Student. It was only when his wife had revealed that she had been out grocery shopping during one of the Student’s visits that the Member admitted to being alone with the Student.

Counsel for the College stated that the first time the Member saw [XXX] was in February, while the second time was sometime in early April. The second episode of [XXX], counsel asserted, could have very well been shortly after April 4, the date of the Member’s alleged sexual advances. Counsel noted that while the Member initially had the Student come over under the guise of babysitting, he subsequently moved on to simply inviting her over to study for the literacy test, even though he was not an English teacher.

College counsel asserted that given all the time the Member and the Student spent together, it was unlikely that the Member could not gauge the teenage girl’s feelings. The Member’s relationship with the Student began with unusual attention at school and progressed to physical proximity, brief physical contact, private conversations and alone time. In the College’s view, these non-sexual interactions were an indicator of how likely it was that the Member ended up making sexual advances towards the Student. College counsel submitted that although it was possible that the Member’s increasingly personal relationship with the Student was not planned and that his sexual advances were a one-time lapse in judgment, it was more probable that the non-sexual boundary violations were premeditated steps toward the incident in the Member’s bedroom.

College counsel argued that it was strange that Ms. Bussineau, the Member’s wife, never drove the Student for her babysitting assignments. Further, it was hard to understand why the Member would ask a girl who smoked [XXX] every night to babysit his two-year-old daughter and trust that she would not be smoking in his house during this time. Another anomaly was the fact that the Student went to the Member’s house four times over an eighteen-day period in the months of March and April, yet after the April 4 visit, the Student never went to babysit at the Member’s residence again.

Turning to the issue of credibility, counsel for the College submitted that the Member had good reason to continue to deny the allegation of sexual misconduct as his teaching certificate and marriage were at stake. Further, in his interviews with Ms. Vezina, the Member had originally denied being alone in his house with the Student and had not been forthcoming about his correspondence and interactions with the Student.

College counsel stated that although the Student did not tell Ms. Vezina about the Member’s sexual advances during her first two interviews, the superintendent noted that the Student appeared quite agitated during these meetings. Specifically, Ms. Vezina recalled the Student being worried that the Member would be angry with her and that she would not get any help in school. During her testimony at the hearing, the Student indicated that she did not disclose the Member’s sexual advances in her first meeting with Ms. Vezina because she wanted to keep him as a teacher and did not want to get him in trouble. However, as the Student was holding it inside, and it was causing her other problems, she decided to tell someone what had happened. Counsel for the College stated that this testimony was consistent with Ms. Vezina’s evidence that the Student eventually admitted that she had originally lied to protect the Member and described her disclosure as “letting out a weight in her body”.

College counsel asserted that the Student’s explanation for lying to Ms. Vezina about her relationship with the Member was fair and reasonable. The Student would have had no reason to fly from [XXX] to Toronto three years after the events to testify about the Member if the allegations were not true. With respect to the suggestion of Member’s counsel that the Student invented the allegations because students were calling her a “skank” and the Student wanted to be portrayed as the victim, College counsel stated that this was not the case at all. The Student was not friends with the girls making these comments and had started a new life in [XXX].

Counsel for the College asserted that the Student gave her testimony honestly and without exaggeration in that she described the incident of sexual touching as lasting only thirty seconds and did not attempt to recount a more elaborate story. As such, College counsel asked the Committee to accept the Student’s testimony and to find the Member guilty of all the allegations of professional misconduct against him.

SUBMISSIONS OF MEMBER’S COUNSEL

Counsel for the Member stated that the Member had admitted to having committed some misconduct, namely that he had an inappropriate relationship with the Student, as alleged in paragraph 4(b) of the Notice of Hearing. The Member had acknowledged engaging in electronic communication with the Student via Facebook as described in paragraph 4(c) of the Notice, and the teacher had indicated calling the Student “hon” or “cutie pie” as alleged in paragraph 4(d) of the Notice. Member’s counsel asserted that the Member’s actions around the literacy test, as described in paragraph 4(a) of the Notice, and his invitation to the Student to stay overnight at his house, as alleged in 4(e) of the Notice, did not rise to the level of professional misconduct. Further, it was the Member’s position that the sexual misconduct alleged in 4(f) never occurred.

Member’s counsel spoke to the issue of hearsay evidence, asserting that the Committee should not give any weight to the testimony provided by Ms. Vezina. In support of this position, counsel cited the Discipline Committee decisions Murphy and Mercer in which panels gave less weight to witnesses and documents whose evidence was based on hearsay and more weight to direct testimony delivered at the hearing. Member’s counsel noted that, with the exception of the Student and the Member, the Committee had not been given the opportunity to test the truth of the evidence given by Ms. Vezina regarding her interviews with various individuals or to determine whether these individuals were credible. The conclusions of the superintendent’s investigation into the Member’s conduct were not relevant as it was not the Committee’s role to determine the accuracy of her deductions but to decide whether the Member had engaged in professional misconduct. As such, Ms. Vezina’s Summary Investigation Chart (Exhibit 3, Tab 2) should not be considered by the Committee as its prejudicial effect would outweigh any probative value the document might have.

In reference to Ms. Vezina’s interview notes and summaries, it was the Member’s position that these documents should not be made an exhibit or considered as evidence. The witness was not the sole author of the summaries, and she did not have a clear recollection of when she prepared the documents. Counsel for the Member submitted that the only notes that should be admitted as evidence were those found in pages 29 and 99-100 of Tab 1 of the hearing document brief (Exhibit 3) as the Student had reviewed and adopted these notes in her cross-examination. Counsel further submitted that since no witness had referred to the letters regarding the Member’s termination from the Board (Tab 7) and the EQAO guide for accommodations (Tab 9) included as part of the brief, these documents should not be considered by this Committee.

Speaking to the literacy test allegation, Member’s counsel submitted that the wording of the allegation outlined in paragraph 4(a) of the Notice of Hearing only related to the process of accommodating the Student and not, as the College submitted, the outcome of the accommodation provided. The issue was not whether the Member assisted in achieving an outcome that was not reflective of the Student’s capabilities but rather, whether he had provided an accommodation not listed in her IEP.

In response to this issue, counsel for the Member stated that the Member provided an accommodation that he felt was appropriate based on the information he had reviewed. Even if the Committee were to conclude that the accommodation was not specifically listed in the Student’s IEP, it was the Member’s position that the action taken was appropriate in the circumstances. Further, even if the Committee were to determine that the accommodations provided were not appropriate, providing assistance to a student in this way did not constitute professional misconduct.

Counsel for the Member emphasized that Ms. Vezina had never looked at the Student’s actual literacy test and had only seen her score. The score, however, would be meaningless without the context of the exam. The Member provided uncontradicted evidence that the full version of the Student’s IEP included a reference to a co-writer and that his accommodations were implemented with the literacy lead’s actions and knowledge. It was the literacy lead who had registered the Student for the test and entered the information about the accommodations into the system.

Member’s counsel asserted that there was no evidence that the Member did anything more than write down information verbalized by the Student during the test. In cross-examination, Ms. Vezina had acknowledged that students’ exceptional needs were sometimes not immediately identified, that students’ exceptionalities and learning styles could change and that teachers were required to accommodate students regardless of whether they had an IEP.

With respect to the issue of the IEP’s missing fourth page, counsel for the Member explained that the Member had previously brought a motion requesting that the Student’s Ontario Student Record be produced for the hearing. However, this request was ultimately denied by a panel of the Discipline Committee. The Committee should not hold this against the Member but should consider the evidence he gave regarding the fourth page.

In response to the assertion that the IEP was outdated, counsel for the Member argued that the Member could only work with the information that he had received. As a teacher, he could not have simply given up and neglected to accommodate the Student because there was no current IEP. Moreover, the school the Student attended in the 2008-2009 academic year, [XXX], was a regular high school that functioned quite differently from the School. Her IEP reflected this fact as it referred to a “regular class with resource assistance” placement. By the time the Student was in the Member’s class, she was no longer in a regular classroom, and it was therefore the Member’s duty to examine the IEP, decide which parts did not apply and take steps for the Student’s academic success.

Counsel further noted that the 2008-2009 IEP alluded to preferential seating and provincial testing accommodations. Although the plan did not outline specific testing accommodations, it would have been inappropriate for the Member to simply give up and not accommodate the Student during the literacy test. Rather, he had to make a judgment call about the accommodations in order to help the Student achieve academic success.

Member’s counsel stated that the Student’s attendance had improved dramatically in February 2010, and Ms. Vezina had agreed during cross-examination that it was plausible that improved attendance would lead to improved academic performance.

In response to the Student’s statement that she had never had a scribing arrangement with another teacher, counsel for the Member stated that the fact that she had never experienced this form of accommodation did not necessarily mean that the accommodation was inappropriate.

Speaking to the Student’s marks, Member’s counsel submitted that it was important to note that the Student had previously attended a regular high school that was quite different from the School. It was plausible that the format of the School was working better for the Student and that her attendance had contributed to her improved performance. Further, despite the College’s submission that the Student never studied during her fourth visit to the Member’s house, the Student had prepared for the exam on other days during class and after class.

It was therefore the position of Member’s counsel that there was not sufficient evidence to establish that the Member had engaged in professional misconduct through his accommodations to the Student, as alleged in paragraph 4(a) of the Notice of Hearing.

Counsel for the Member acknowledged that the Member had invited the Student to babysit and to stay overnight at his house, as alleged in paragraph 4(e) of the Notice, but stated that the context of the invitation was important. The Member lived in a small town, and he did not have any friends and family close by when he asked the Student to babysit his daughter. Moreover, the Member had explained to Ms. Vezina that he had asked the Student if she would stay overnight, given that he lived far away from [XXX] and that she came from a troubled home situation. Counsel for the Member submitted that the question was not whether the members of the Committee would have chosen the Student as a babysitter themselves but whether the Member’s actions in these circumstances constituted professional misconduct.

Speaking to the issue of credibility, counsel cited the Ontario Court of Appeal decision the R. v. M.G., which indicated that it was important to examine the consistency between a witness’ statements at a hearing and his or her statements on other occasions. In terms of the allegation of sexual contact outlined at paragraph 4(f) of the Notice of Hearing, Member’s counsel noted that the Student told Ms. Trudel that she would lie to the Board about the Member and that she made the sexual misconduct allegation five months after the alleged incident.

Counsel for the Member submitted that the Student had a motive for inventing the allegation as students were blaming her on Facebook for the Member’s absence from school, and she had been fighting with her boyfriend about the Member. Further, the Student had expressed concerns to the police about being charged for making false allegations. She had not gone to the police or the Board on her own volition, but rather, they had sought to interview her.

Member’s counsel submitted that the Committee should have serious concerns about the Student’s credibility as a witness. While she testified to never having discussed her use of [XXX] with the Member, College counsel suggested to the Member during cross-examination that the teacher had indeed spoken with the Student about her [XXX] use. In the same vein, although College counsel asserted that the Member had held onto the Student’s babysitting money and then gave it to her so that she could buy birth control, the Student herself testified that the Member had given her his own money during this incident. It seemed that the College took a different position than its own witness in these factual discrepancies.

Member’s counsel submitted that while the Member’s testimony at the hearing was not entirely consistent with his statements to Ms. Vezina in May 2010, these discrepancies did not indicate that he was a witness lacking credibility. In his first interview with the superintendent, the Member had admitted to meeting the Student at a [XXX] and acknowledged corresponding with the Student by phone and Facebook, taking her to the hospital, going to her home and reading and scribing for her during the literacy test. During his second interview, he recognized the inappropriate nature of his actions, even though this admission did not make him look good in front of his employer. Further, the Member acknowledged during the hearing that he told Ms. Vezina that the Student had been to his house three times when, in fact, it had been four times. This evidence did not shed a positive light on the witness, but he still gave his evidence in a straightforward and forthcoming manner.

Touching on Ms. Vezina’s credibility, counsel for the Member challenged the notion that the superintendent could tell the Student was agitated during her first two interviews because she kept grabbing her collar and twisting her hair. As the superintendent had never met the Student before interviewing her in May 2010, it was implausible that Ms. Vezina could speak to the Student’s habits or know her patterns well enough to determine whether she was agitated or not.

With respect to the sexual misconduct allegation at paragraph 4(f) of the Notice of Hearing, counsel for the Member asked the Committee to consider how probable it was that a teacher would engage in an act of sexual touching with a student while knowing that his wife and daughter could come home at any time. The Committee was also asked to consider how probable it was that days after touching a student sexually, a teacher would take this student to a hospital and put her in touch with medical professionals to whom she could safely disclose the incident. In regard to the alleged leg-to-leg contact, Member’s counsel submitted that the Student had provided varying accounts of this occurrence and that this inconsistency was important to the assessment of her credibility.

Counsel for the Member disagreed with the College’s assertion that the Member had failed to seek more direction when he saw the Student’s escalating problems. The Member spoke to Ms. Trudel about the Student’s problems, and he contacted Kim Barnes, a Board employee, when he wanted to take the Student to a crisis service at the hospital. After the hospital trip, he also contacted a counselor from Algoma Family Services for the Student. The evidence did not demonstrate that the Member had tried to handle the situation by himself.

Counsel for the Member concluded that the Member was admitting to engaging in professional misconduct under the non-sexual boundary allegations listed in paragraphs 4(b), 4(c) and 4(d) of the Notice of Hearing. However, counsel asked that no findings of misconduct be made regarding the literacy test allegation at 4(a), the Member’s invitation to the Student to stay overnight at his place at 4(e) and the sexual touching incident at 4(f). Counsel stated that this event had never occurred.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

In response to the arguments of Member’s counsel regarding Ms. Vezina’s hearsay evidence, College counsel stated that the important part of the superintendent’s testimony was her impression of the Student and the Member and the accounts they had previously given her about the alleged events. The Student and the Member were called to testify, so the Committee did not have to rely solely on Ms. Vezina’s testimony. However, it was not necessary to call other witnesses, such as Mr. Gregory or Ms. Trudel, as they were not present during the bedroom incident.

Counsel for the College submitted that Ms. Vezina’s interview notes and summaries should be considered as the witness authored these documents and identified them in her testimony. Although Member’s counsel had argued that Tab 9 of the hearing document brief (Exhibit 3), the EQAO guide, should not be considered an exhibit, College counsel argued that the document was an authority and that Member’s counsel had previously brought a motion requesting that any documentation of the proper procedure for accommodating students be produced for the hearing.

With respect to the assertion of Member’s counsel that the literacy test allegation at 4(a) of the Notice of Hearing only referred to the process of accommodating a student and not the outcome, counsel for the College stated that the outcome of the exam was a piece of evidence for the Committee to consider when determining whether the Member’s accommodations were appropriate. Further, Member’s counsel had previously brought a motion requesting that the Student’s test results be produced for the hearing. If Member’s counsel felt that the test results were relevant at the time of the motion, they should still be relevant now.

On the issue of credibility, College counsel responded to the argument of Member’s counsel that Ms. Vezina could not have known the Student well enough to tell when she was agitated. College counsel stated that the Student had exhibited typical human signs of anxiety, including twisting her hair, fidgeting and turning flush, so it was natural that Ms. Vezina, who had been dealing with students for decades, could tell that she was agitated during her first two interviews.

Counsel for the College acknowledged that there were inconsistencies between what the Student had reported to Ms. Vezina in May 2010 and her third meeting with the superintendent in September 2010. However, according to Daryl Fillmore, a counsellor and manager of counseling service referenced in the motion decision regarding the Member, abuse victims often have a difficult time acknowledging the abuse or discussing it until sometime after the abuse has occurred.

With respect to the submission of Member’s counsel that the Student had made up the allegation because students had been assigning blame to her for what had happened to the Member, College counsel stated that the Student currently lived in a different city and community than the girls who had been making these comments on Facebook. The Student had no motive in 2013 to come down for a hearing to testify regarding incidents that had never happened. Counsel also disagreed with the Member’s position that the Student’s concerns about giving a false report indicated that she was lying about the bedroom incident. If the Student had been making up the story, she would have left the police station after being told that she could get in trouble for making false statements.

As for the dispute over whether the Student paid for her birth control using her babysitting payment or the Member’s own money, College counsel argued that it did not matter whether the Member held onto the Student’s money and then gave it to her or whether he simply gave her his own money. He still would have committed professional misconduct in both scenarios.

Counsel for the College further submitted that the Member’s admissions during his interviews with Ms. Vezina did not necessarily mean that the teacher was trying to be honest. Rather, he admitted to actions that would otherwise have been discovered fairly quickly, such as his Facebook correspondence with the Student and his trip with her to buy birth control. The Member had conceded to these non-sexual boundary violations in order to gain credibility in the eyes of the Board on the remaining contentious issue of sexual misconduct, and he was using this same tactic at the hearing before the Committee.

In terms of the Student’s credibility, counsel argued that Member’s counsel was attempting to show inconsistency where there was none by raising minor details or issues. The Student’s overall testimony was consistent as she never attempted make up a wild story. Instead, her account was always that the sexual encounter occurred in the Member’s house, took place very briefly one time and never happened again.

DECISION

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof, with which the Committee is familiar, as set out in F.H. v. McDougall, 2008 SCC 53 (the “McDougall decision”). The standard of proof applied by the Committee, in accordance with the McDougall decision, is a balance of probabilities. As in all cases, the Committee looks for clear, convincing and cogent evidence.

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 Jeffrey Tavis Bussineau committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) - unprofessional and 1(19).

The Committee does not find that the Member contravened subsections 1(7.1), 1(7.2), 1(7.3) and 1(15) of Ontario Regulation 437/97.

REASONS FOR DECISION

Factors in Assessing Credibility

In reaching its decision, the Committee applied guidance from the courts in determining the credibility of witnesses. The Committee took into account the integrity of the witness, the candidness of the witness, and the lack of evasion, and responsiveness. Considered also was any evidence of bias, memory and capacity to remember, as well as any inconsistencies in testimony. The demeanour and manner of speech, consistency of retelling of the story or self-contradiction were also important in the assessment. It was essential for the Committee to consider the plausibility and reasonability of the evidence, and whether the testimony made sense. The Committee also looked for consistency in the description of the events by witnesses. Timing of events and circumstances in which they occurred were important considerations in assessing credibility.

Further in determining the appropriate guidelines for assessing credibility, the Committee relied on Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), (52) O.R. (2d ) 302. The Committee accepted the importance of its duty to state clearly its grounds for supporting the evidence that is presented by witnesses and conversely for disbelieving evidence. All parties to a process should have the satisfaction of knowing that they have been fairly dealt with and understood. The Committee assessed the relative force of testimony. Discrepancies have been assessed. Common sense and knowledge of human nature were considered. The appearance and demeanour of witnesses were an important consideration. The relative powers of perception and ability to observe were also important factors. Self-interest in the litigation and partisanship were also considered. The Committee was also very much aware of the issues of probability and improbability. The Committee questioned any instances of contradiction, inconsistency and the general sense of truthfulness of witnesses.

Assessment of the Evidence

The Committee considered the particulars of the allegations as presented in the Notice of Hearing and paid special attention to the evidence for the specific allegations listed under paragraph four. The Member was found to have engaged in professional misconduct for particulars 4(b), 4(c) and 4(d).

The Member admitted that engaging in electronic communication with the Student via Facebook and calling the Student “hon” or “cutie pie” constituted an inappropriate personal relationship with the Student. He also admitted to a superintendent in an interview that meeting a student offsite, at a local coffee shop, was an inappropriate action. The Committee accepted his admissions and the evidence presented to that effect. The evidence that was submitted by College counsel and supported by Member’s counsel outlined a situation where the teacher, working in a very challenging school environment, made inappropriate decisions. Much has been said about the dangers of electronic communication with students, and this has been an ongoing reality that has been signaled by the College to all its members. The Member was either unaware of or disregarded the dangers posed by personal electronic communication with students. This danger is keynoted by the Member’s use of highly inappropriate salutations, such as “hon” and “cutie pie” in his correspondence with the Student, comments that a young person might very much misconstrue. In fact, there was a Board memo discouraging teachers from engaging in Facebook communication with students.

Generally, teachers are cautioned by their boards to refrain from having students in their personal vehicle. This cautionary approach against driving students has been accepted for many years, and in spite of the difficulty of travel and absence of local public transportation in the northern region of the province, the Member ought to have known that having students in his personal vehicle could lead to accusations of professional misconduct. The Member exhibited poor judgment in this regard.

The Member developed an inappropriate personal relationship with the Student, and this was exemplified by sharing with the Student the fact that he was sitting outside, in a state of undress, and consuming alcohol. Additionally, the Member assisted the Student in obtaining personal medication. The Member may have given his own money to complete the purchase. The Member appeared not to have realized the peril of engaging in such highly personal interactions with the Student.

By these actions, the Member was found to be engaging in professional misconduct as defined by Ontario Regulation 437/97, subsections 1(5), 1(18) – unprofessional and 1(19).

The Committee considered the submissions of Member’s counsel and College counsel and the evidence and testimony provided during the hearing, and after applying tests of credibility and further weighing the quality of the testimony and evidence, determined that the burden of proof was not met in relation to the allegations set out at paragraphs 4(a), 4(e) and 4(f) of the Notice of Hearing.

With regard to the allegation about accommodations provided for the EQAO literacy test, the Committee determined that there was insufficient evidence to demonstrate professional misconduct. The key question was whether the Member provided inappropriate accommodations for the Student during the test. The Member explained that there was no current IEP for the 2009-2010 school year, so he based his accommodations on recommendations from the psycho-educational assessment report from 2006 and the IEP from the 2008-2009 school year. He also consulted with the literacy teacher and read the Student’s Ontario Student Record. The Committee found that the Member took reasonable steps to support the Student, given the lack of an updated plan.

The Member’s accommodations were not put into question until after the results of the test were received. The Committee took into account the fact that the literacy lead accepted the Member’s request for accommodations for scribing and reading and entered them into the EQAO system. She raised no concerns as the accommodations appeared to be reasonable, given the Student’s [XXX] profile.

The evidence provided by the Member suggested an incomplete IEP document, in that there was a missing page, which may have specified accommodations for scribing. Further, no true copy of the Student’s literacy test was provided for assessment by the Committee, nor did any of the witnesses at the hearing attest to having seen the document.

The Committee noted that the psycho-educational assessment report indicated that success in academics was in the Student’s capacity with resource support, compensatory strategies and assistive technology. In the Committee’s opinion, scribing and reading could be considered compensatory strategies.

In response to College counsel’s assertion that the IEP should not have been adjusted based on the Member’s “subjective views”, evidence was proffered that the Member did communicate with the lead teacher for the literacy test as well as the principal and used his professional judgment appropriately. The Committee agreed with the Member’s actions. In fact, the Member’s support could be deemed sound professional practice.

The Committee accepted as credible the Member’s testimony about his support and intervention strategies to the Student. The documentary evidence supported his testimony.

The Member’s decision to have the Student babysit at his home and possibly stay overnight was inappropriate but did not rise to the level of professional misconduct. The Committee accepted the Member’s statement that this invitation was one way in which he could relate to the Student. However, in many cases, teachers are advised to reflect carefully before having students babysit for them and are often advised not to have students stay overnight. This admonition is based on the issue of perception of a teacher’s relation with a student and, more simply, on a student safety principle. This type of interaction could lead to misunderstanding and a jaundiced view of the teacher. Today, it is generally seen to be inappropriate to have students spend time in a teacher’s home and to engage in a teacher’s private life.

That being said, the Committee found that there was insufficient evidence to support the assertion that the Member’s babysitting request constituted active grooming behaviour. The Committee noted that the geographical circumstance of the Member’s home and school situation presented challenges peculiar to a northern rural environment in obtaining child care. While the Member’s choice of the Student as a babysitter may seem strange or desperate to some, it does not necessarily imply any intention to engage in grooming. Furthermore, the Member’s account of the situation was presented in a clear and cogent manner, one that was not undermined by other testimony.

The most serious allegation was that the Member had sexual contact with the Student by touching her, fondling her breast or breasts and kissing the Student. The Committee paid close attention to the quality of testimony and evidence when deliberating in this matter, with a focus on credibility. The Committee was very much aware of the seriousness of this allegation.

The Committee heard testimony to the effect that the Member had touched, fondled and kissed the Student in his second-floor bedroom of his family home. At the time, this behaviour, according to the Student, occurred while the Member’s wife was away from home for some time. The Student testified that after less than thirty seconds, she put a stop to the Member’s advances.

The Member denied that the sexual touching happened, yet, at the same time, the Student maintained that her account of the event was a true account.

In assessing the credibility of the Member, the Committee found that the Member’s evidence and testimony appeared to have a greater degree of clarity and conviction. The events that occurred after the alleged incident also assisted the Committee in finding the Member credible: a few days after the alleged event in the bedroom, the Member quickly took the Student to a crisis service when the Student was in distress. It could be argued that the Member would have put himself in jeopardy if the Student revealed any details of sexual impropriety to medical professionals in the hospital. The fact that the Member acted quickly served to strengthen his version of the events that no impropriety transpired in his home. The Committee gave a great deal of weight to the fact that the Member acted in the best interest of the Student by taking her to urgent care. He also immediately sought counsel from a former colleague working at that time in another school because he could not reach anyone at the School.

The Student’s version of the purported sexual impropriety in the Member’s bedroom was less credible. In the first two interviews with Ms. Vezina, the Student denied that anything inappropriate happened, which, of course, was different than what she said in her testimony during this hearing.

Once impropriety was disclosed by the Student to a counselor and, in turn, in a third interview, to the superintendent, the Student was subsequently interviewed by the police. Given the option of pressing charges, the Student opted not to proceed and did not follow up with any other scheduled interviews.

The Committee was also concerned about the many inconsistencies in the Student’s testimony. While some of these discrepancies are not specific to the sexual misconduct allegation, they point to her general credibility as a witness:

• In September 2010, the Student originally told a counselor from her new school that she had a crush on the Member, but that nothing had happened. Later that month, however, she told the counselor that the Member had touched her inappropriately.

• The Student was inconsistent about the frequency of her Facebook correspondence with the Member.

• The Student denied seeing anyone she knew at [XXX] when she met the Member there on May 13, 2010. Two students from her relatively small [XXX] school worked at that location, and although they recognized her as a fellow student, she claimed to not have recognized anyone during the meeting. The Committee found it unreasonable that the Student did not recognize these other students.

• The Student told the police that during the bedroom incident, she indicated to the Member that she was scared that his wife would come home. In her interview with Ms. Vezina, however, she stated that she told the Member that she did not want to have intercourse at that time, and wanted to wait.

• The Student said that before the bedroom incident she had a crush on the Member, yet also claimed that he made her feel uncomfortable.

• The Student was inconsistent about her leg-to-leg contact with the Member in the classroom, in that:

o It was not mentioned at all to the police;

o She told Ms. Vezina that the Member slid his leg against hers; and

o She testified at the hearing that she brushed her leg against his.

The Committee found these inconsistencies troubling.

One of the tests of credibility is self-interest and motive. One aspect of the Student’s situation that may speak to motive, and taking into account the Student’s use of Facebook and social media, was the fact that other students were blaming her on Facebook for the Member’s absence from school. It seemed that the other students were not happy about the possibility of losing one of their favourite teachers. Therefore, the Student had motivation to tell a version of events that led to an allegation against the Member. Although College counsel argued that the Student is no longer impacted by her peers’ Facebook comments given that she currently lives in another city, the Committee did not give much weight to this argument. The Committee noted that the Student actually made the report regarding the Member’s advances in the fall of 2010, while she was still living in [XXX]. Therefore, she was likely interacting with the students who had posted these Facebook comments when she made the initial allegation of sexual misconduct to her counselor and Ms. Vezina.

The Student had a boyfriend, and her relationship with this person was described as unstable, partly because the Student had shown her boyfriend her electronic communications with the Member. The timing of this instability with her boyfriend as well as her [XXX] and subsequent admission to a hospital for observation, seemed coincidental in relation to her disclosure about her relationship with the Member to a counselor. In sum, the timing of the Student’s allegation that the Member had initiated sexual contact with her, seemed to be directly related to her personal situation. College counsel asserted that the Student had broken up with her boyfriend and that there was therefore no reason for her to lie about the Member’s actions. However, the Committee noted that during the hearing, the Student stated that she had broken up with her boyfriend about two years before the time of her testimony, placing the break-up sometime in 2011. As such, it seems that the Student was still with her boyfriend in September 2010 when she initially alleged to her counselor that the Member had made sexual advances towards her.

By carefully applying the relevant considerations, the Committee has assigned less weight to the testimony of the Student, especially as it related to particular 4(f) regarding sexual impropriety. As such, the Committee did not find misconduct under Ontario Regulation 437/97, subsections 1(7.1), 1(7.2) and 1(7.3).

Submissions of College Counsel

The Committee considered the closing submissions of both counsel and evaluated the strengths and weaknesses of their arguments.

Inappropriate Accommodations for Literacy Test

College counsel raised many issues that might support the Committee’s understanding of the testimonies regarding the nature of the allegations against the Member. One of his concerns was that the Member’s accommodations for the Student were unwarranted and changed the nature of the EQAO literacy test. He argued that the Student had never had a scribing arrangement before, that it was more than a slight adjustment, and it was not in the superintendent’s opinion that this accommodation was appropriate. After weighing all the evidence, the Committee determined that indeed, the accommodations were reasonable and were shared with responsible school persons. No documentary evidence from the Student’s actual literacy test was offered to prove that the accommodation arrangements altered the Student’s final results and that the accommodations should be a matter of concern. Therefore, the Committee could not find the misconduct alleged in paragraph 4(a) of the Notice of Hearing.

College counsel argued that the Student’s test results and rankings should be a factor in deciding whether the Member’s conduct was appropriate. College counsel shared with the Committee the results of the Student’s literacy test and the apparent inconsistency vis-à-vis ranking both provincially and locally that was revealed therein. He also referred to the Student’s grade [XXX] report card to highlight the significant discrepancy between her academic performance and her literacy test results. However, her grade [XXX] report card was from June 2007, and the Committee therefore determined that the marks could not be given considerable weight in the circumstances. The Committee determined that there was an insufficiency of evidence to fully support College counsel’s supposition.

Non-Sexual Boundary Violations

The Committee agreed with College counsel that the Member admitted to the alleged non-sexual boundary violations, which included electronic communication, terms of endearment and assistance in the procurement of birth control.

College counsel suggested that there was a “classic pattern of grooming”, which culminated in sexual contact on April 4, 2010. The Committee finds that the burden of proof was not met with respect to this allegation.

College counsel made the point that the Member targeted the Student because of her clear vulnerability, and while there was ultimately no finding of sexual misconduct, the Committee agreed that there were clearly inappropriate boundary violations, but of a non-sexual nature. The Committee determined that the allegations in particulars 4(b), 4(c) and 4(d) were proven.

College counsel suggested that non-sexual interactions were indicative of how likely it was that the Member ended up making sexual advances to the Student and that it was probable that the non-sexual boundary violations were premeditated steps toward the incident in the Member’s bedroom. However, for the reasons articulated in the assessment of credibility stated above in this decision, the Committee found that the burden of proof was not met with respect to whether the activity culminated in sexual contact.

Arguments that the Member was Not Credible

College counsel pointed to the Member’s statements given to his superintendent during his interviews. College counsel suggested that the Member’s story shifted, was inconsistent, and that he was careless with the truth. The Committee determined, following a full analysis of all the evidence provided and applying the accepted tests for credibility, that while the Member’s story might have demonstrated minor inconsistencies, this was in contrast to the Student’s differing versions of material matters as set out above.

The Committee expresses its appreciation to College counsel for raising numerous issues to consider that would help guide it in its determination of the facts in this matter. The Committee was diligent and careful in its deliberations, took into account College counsel’s arguments, and after applying generally accepted principles of credibility assessment, came to its decision.

Submissions of Member’s Counsel

Member’s Admission of Professional Misconduct

Member’s counsel made an extensive closing submission and in her initial comments, counsel, on behalf of the Member, acknowledged a number of elements of misconduct. Member’s counsel stated that the Member’s actions were professional misconduct, particularly as it related to 4(b), 4(c) and 4(d) of the Notice of Hearing. However, Member’s counsel was clear in her assertion that the Member’s action regarding the literacy test and the invitation to stay overnight did not rise to the level of professional misconduct. Most important, Member’s counsel refuted the allegation of sexual misconduct as alleged in particular 4(f).

Consideration of Hearsay Evidence

An important concern raised by Member’s counsel was the issue of hearsay evidence. Member’s counsel argued that the Committee should give less weight to the testimony of Ms. Vezina since, for the most part, it was based on information from others, either as a second-party or third-party source. Member’s counsel provided the Committee with examples of decisions where less weight was ascribed to witnesses and documents based on hearsay and where more weight was attached to direct testimony by persons involved with the incidents of the matter at hand. The Committee was cognizant of the fact that some witnesses were not called to speak about documents that were presented and statements made, witnesses that could have been called by Member’s counsel or College counsel. In that regard, the Committee determined to judiciously weigh all testimony and evidence that was tendered.

Consideration of Documentary Evidence

Member’s counsel argued that some documents should not be made exhibits or considered evidence. In fact, Member’s counsel posited that only pages 29 and 99-100 of Tab 1 of the document brief (Exhibit 3), should be admitted as evidence. The Committee considered this position but determined that it was within its authority and, in fact, its duty, to assess all documents.

Literacy Test Accommodations

The Committee agreed with Member’s counsel that the provision of accommodations not specifically listed in the IEP was an appropriate action by the Member. In support of this contention, Member’s counsel pointed out that there was evidence of support within the School by persons in authority. The Committee agreed with this point of view. The Committee appreciated the argument of Member’s counsel that no evidence was presented to support the contention that the Student’s score was improperly achieved.

Member’s counsel provided an argument suggesting that the Member, in fact, rose to the challenge of assisting the Student in spite of the fact that there was no current IEP to guide him properly. Member’s counsel argued that the Member made an appropriate judgment call about accommodations in order to help the Student achieve academic success. The Committee agreed with Member’s counsel.

Issue of Babysitting

Member’s counsel provided cogent argument about the geographical situation of the Member that might have worked to encourage him to make babysitting arrangements, which, on first assessment, could appear to be inappropriate. The Committee considered the viewpoint presented by Member’s counsel that there were special geographic factors at play in arranging for babysitting. These factors helped to refute the notion that the Member’s babysitting invitation was an act of grooming.

The Student’s Credibility

Member’s counsel suggested that the fact that the Student told a school counselor that she would lie to the Board about the Member was a compelling argument that could detract from the weight of the Student’s testimony. In its findings, the Committee did not accept the allegation in paragraph 4(f) of the Notice of Hearing for this reason as well as other elements to do with credibility.

Member’s counsel painted a picture whereby the Student demonstrated the possibility of a motive for inventing allegations. The pressure of Facebook comments and fear of being caught in making a false allegation to the police should both be evaluated as providing motivation that might explain the Student’s vacillating versions of her account.

Member’s counsel suggested a number of concerns about the Student’s credibility as a witness. Member’s counsel cautioned the Committee about the statement regarding the Student’s use of [XXX] and the discrepancy in the details about whose money it was that paid for the morning-after medication. The Committee did indeed consider these concerns when assessing the credibility of the Student. Member’s counsel cautioned the Committee about giving weight to the Member’s testimony based on seeming discrepancies. Discrepancies could be noted in the Member’s testimony about his meeting with the Student at [XXX], about his taking the Student to the hospital and their activities in preparing for the literacy test at the Member’s home. Member’s counsel submitted that the Member’s evidence, on the other hand, was provided in a straightforward and forthcoming manner that strengthened his credibility.

Member’s counsel addressed the issue of the superintendent, Ms. Vezina, deciding that the Student was agitated during her first two interviews. She based this view on the fact that the Student was grabbing her collar and twisting her hair. The Committee was cautioned by Member’s counsel that the superintendent could not possibly know the Student’s habits or patterns well enough to establish her state. The Committee accepted this supposition as being reasonable. The Committee rejected College counsel’s view that these actions should be seen as universal indicators of agitation.

Member’s counsel raised the issue of the sexual misconduct allegation as outlined in 4(f) of the Notice of Hearing. Member’s counsel offered up a guideline for considering the probability that this sexual misconduct actually happened. Member’s counsel argued that it was inconceivable that the Member would engage in an act of sexual touching while knowing that his wife and daughter could come home at any time. The Committee agreed with this plausibility argument and recognized that the Member had other opportunities to engage in such dishonourable behaviour but that there was no evidence suggesting that he did so.

Member’s counsel guided the Committee to ask itself the question: would the Member have assisted the Student in getting medical help from professionals to whom she could safely disclose the incident and thereby, put himself into professional jeopardy? The Committee, at the end of the day, agreed that these were reasonable factors to consider in assessing the allegation of sexual misconduct.

In fact, Member’s counsel argued, the Member called in other professionals and colleagues to assist with the Student’s problems and even went so far as to contact a family services counselor. While the Committee does recognize that the Member could have done all of these things as a smokescreen, the Committee finds that there is insufficient evidence to demonstrate that this was an attempt to cover up his misconduct. In addition to this argument, the Committee also considered the fact that the Member fully informed the Student’s mother of their trip to the hospital. All of these actions were considered by the Committee in assessing whether or not sexual misconduct had occurred and contributed to finding that the burden of proof was not met in relation to the sexual impropriety allegation.

Reply Submissions of College Counsel

In reply submission, College counsel argued that it was not necessary to call other witnesses as they would add nothing substantial regarding the superintendent’s so-called hearsay evidence. He argued that the Committee should accept the superintendent’s evidence regarding the Student and the Member’s relationship. The Student and the Member were called to testify, and the Committee did not have to rely solely on the superintendent’s testimony. The Committee considered this and assessed the sufficiency of testimony but still felt that reasonable consideration had to be given to the issue of hearsay and did so in coming to its conclusions. All testimony given through the course of the hearing was tested for its cogency, consistency and veracity. Much of the superintendent’s testimony was hearsay and therefore, given less weight.

College counsel, in his reply submission, made the point that the superintendent, who had been dealing with students for decades, could very readily assess a student for that student’s degree of agitation. The Committee is not convinced that even an experienced educator would always be able to tell when a student was agitated.

College counsel attempted to clarify the nature of the professional misconduct allegedly committed by the Member when he assisted the Student in acquiring birth control. College counsel argued that it did not matter whose money it was but that the important consideration was that the Member was there, assisting. As is already stated above, the Committee did find that this was misconduct.

College counsel dismissed the Member’s concessions regarding the non-sexual allegations contained in paragraphs 4(b), 4(c) and 4(d) of the Notice of Hearing as merely a stratagem to gain credibility on the remaining and more contentious issues of sexual misconduct. The Committee considered this notion very carefully, but ultimately determined that the testimony and evidence provided did not meet the burden of proof in relation to the allegation of sexual touching.

The Committee gave careful consideration to the evidence tendered, the submissions made and the authorities relied upon in reaching its decision in this case.

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: April 15, 2014

Mel Greif Chair, Discipline Panel

Monika Ferenczy, OCT Member, Discipline Panel

Alexander (Sandy) Bass, OCT Member, Discipline Panel