DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996 (the “Act”) and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Paul Jorge Da Rosa, a member of the Ontario College of Teachers.
PANEL: Pauline Smart, Chair Louis Sloan, OCT
Wes Vickers, OCT
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
- and – )
PAUL JORGE DA ROSA ) Katherine Rowen,
(CERTIFICATE #277141) ) Ursel Phillips Fellows
) Hopkinson LLP,
) for Paul Jorge Da Rosa
) Marc Spector,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: February 3, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on before a panel of the Discipline Committee (the “Committee”) on February 3, 2014 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated July 31, 2013 (Exhibit 1) was served on Paul Jorge Da Rosa (the “Member”), requesting his presence on August 27, 2013 to set a date for a hearing and specifying the charges. The hearing was subsequently set for February 3, 2014. Although the Member was not in attendance, he was represented by Katherine Rowen from Ursel Phillips Fellows Hopkinson LLP.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated July 31, 2013 (Exhibit 1) are as follows:
IT IS ALLEGED that Paul Jorge Da Rosa 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;
(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(e) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Paul Jorge Da Rosa (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed as a secondary school teacher by the Thames Valley District School Board (the “Board”). At all material times, the Student was a female student [XXX]. The Member was the [XXX].
During the 2008-2009 academic year, the relationship between the Member and the Student changed in that the Member and the Student began working together on [XXX] alone in the Member’s classroom.
A few weeks after the Student’s [XXX] birthday in [XXX] 2009, the relationship between the Member and the Student began to involve physical contact, which escalated to kissing.
After the incident referred to in paragraph 4 above, the Student began to stay late at the School, and would return to the School in the evenings in order to spend time with the Member. The Member and the Student would also see each other during school hours, alone in the Member’s classroom.
The relationship between the Member and the Student progressed such that in [XXX] 2009, the Member and the Student engaged in sexual intercourse for the first time. This occurred at the School, following a school event.
Thereafter, the Member and the Student would engage in sexual intercourse on several occasions in the Member’s classroom.
Furthermore, sexual intercourse between the Member and the Student occurred once, during a [XXX] in [XXX] of 2009 in the Member’s hotel room.
Sexual intercourse also occurred a few times in the Member’s car.
The relationship between the Member and Student continued after she graduated from the School and lasted until the [XXX] of 2010. The Student reported the matter to the Principal of the School on [XXX], 2012.
The Member resigned from the Board on or about December 6, 2012.
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 11 above (the “Agreed Facts”).
PLEA OF NO CONTEST
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 3 to 9 above, constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19). The Member also acknowledges that he engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Statement of Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(e) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Civil Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
Counsel for the College also tendered a Plea Inquiry signed by the Member (Exhibit 3).
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 Paul Jorge Da Rosa committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19). Further, the Committee finds that the Member engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.
REASONS FOR DECISION
Through the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), the Member acknowledged that his behaviour constituted professional misconduct and pleaded no contest to the allegations of professional misconduct against him. The Committee accepts the Member’s plea of no contest and the Uncontested Facts outlined in the agreement tendered by the parties.
The Committee finds that the Member’s conduct did not comply with the standards of the profession or the Education Act. The Member’s conduct is reprehensible, disgraceful and unbecoming a member of the profession. The Member abused the authority and trust vested in him in his role as a teacher without regard to the well-being of the student. The Member’s actions were in conflict with his duty to care for and protect students.
JOINT SUBMISSION ON PENALTY
Counsel for the College and counsel for the Member submitted a Joint Submission on Penalty (Exhibit 4) indicating the following:
The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
(a) directs the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar; and
(b) directs that there be publication of the findings and Order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.
PENALTY SUBMISSIONS RE: PUBLICATION
Submissions of College counsel
Counsel for the College submitted that the discretion to publish the Member’s name lies within the purview of the Committee. College counsel submitted that this matter was exactly the type of case for such an order. Publication with name serves as a specific deterrent to the Member and as a general deterrent to members of the profession. Publication with name also ensures transparency in the disciplinary process. College counsel also stated that the Committee ought to publish the Member’s name if there is no compelling reason not to publish a member’s name. It was the College’s position that publishing the Member’s name is in keeping with the openness of Discipline Committee proceedings, which is paramount.
Counsel for the College outlined five similar-fact cases, which warranted publishing the member’s name. Although some of members in these cases were criminally charged, College counsel stated that the criminal convictions were not the main reason that the Discipline panels ordered publication with name. Therefore, while the Member in this case has not been criminally charged, counsel for the College asserted that the cases presented were relevant precedents. In each of the five cases, the members in question requested that their names not be published, often citing protection from embarrassment for self and family (children). However, in each of the five cases, the Discipline panels hearing the matter determined that such reasons were not sufficiently compelling to withhold the member’s name.
Submissions of Member’s counsel
Counsel for the Member submitted that the Member’s name should not be published in the College’s publication Professionally Speaking/Pour parler profession. Member’s counsel spoke to two factors which support non-publication of the Member’s name. One of the factors was the privacy and protection of the Member’s two children, who were not responsible for the Member’s actions. The second factor was the protection of the victim’s identity. Counsel for the Member stated that the fact the Member was from a small community, coupled with the details of this case in hearing documents, could make the identity of the victim known if the Member’s name was published. To illustrate that protection of a victim is an important consideration, counsel for the Member referred the Committee to a previous Discipline Committee case in which the hearing panel ordered non-publication of a member’s name so as to protect the victim’s identity.
Reply Submissions of College Counsel
Counsel for the College referred to submissions of Member’s counsel regarding the protection of the Member’s children. These same factors were established in the cases brought forward by College counsel, yet these reasons were not deemed sufficient to warrant non-publication of name. In response to the submission that naming the Member would identify the victim, counsel for the College asserted that the Committee could craft a decision that would not divulge the particulars of the case and identify the victim.
College counsel further stated that a mitigating factor for non-publication of name in the case brought forward by Member’s counsel was the mental health of the member, who had attempted suicide after the matter had been published in a local newspaper. Counsel for the College submitted that there is no evidence before the Committee to suggest that there are similar issues in this present case.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Committee directs the Registrar to revoke immediately the Certificate of Qualification and Registration of the Member, which certificate the Member is to immediately surrender to the Registrar;
The findings and order of the Committee shall be published in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
Revocation is the appropriate penalty for misconduct of this severity. The Member chose to engage in a sexual relationship with a student, including sexual intercourse on multiple occasions. He engaged in this behaviour in various locations, including his classroom. Such acts represent the most egregious breach of trust between a teacher and a student under his care. The Member has therefore forfeited the privilege of holding a teaching certificate and being a member of the teaching profession.
As the Member’s actions comprised the most serious breach of trust, publication with name in these circumstances is warranted and appropriate. The Committee determined that publication with the Member’s name is necessary in order to provide the general deterrence to the teaching profession. The public and the teaching profession will take note of the response of the College in matters such as this.
The Committee determined that the Member’s arguments for non-publication were not sufficiently compelling to outweigh the need for transparency in such a serious case of misconduct. The Committee determined that having children within the school system is not unusual and is not a sufficient enough reason to withhold the Member’s name. Further, in regards to the submissions made by Member’s counsel regarding the protection of the victim’s identity, no evidence was presented regarding the victim’s wish for privacy. The Committee also noted that the details of this matter, through the Notice of Hearing (Exhibit 1), are already in the public domain.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: February 3, 2014
Pauline Smart
Chair, Discipline Panel
Louis Sloan, OCT
Member, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel