Ontario College of Teachers v Davidson, 2014 ONOCT 32

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Davidson, 2014 ONOCT 32

Date: 2014-05-22

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

Jeremy Russell Davidson, a member whose certificate is expired of the Ontario College of Teachers.

PANEL: Stefanie Achkewich, OCT, Chair

Robert Gagné Darlene Mead, OCT

BETWEEN: ) Shane D’Souza,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Beverley Hodsdon,

) Law Clerk

• and – )

JEREMY RUSSELL DAVIDSON ) Jeremy Russell Davidson,

(CERTIFICATE # 475976) ) on his own behalf

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: May 22, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on May 22, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 1, 2013 was served on Jeremy Russell Davidson (the “Member”), requesting his presence on June 11, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 22, 2014.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated May 1, 2013 (Exhibit 1) are as follows:

IT IS ALLEGED that Jeremy Russell Davidson is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) 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 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);

(c) he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

AGREED STATEMENT OF FACTS

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

1. Jeremy Russell Davidson (the “Member”) is 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.

2. At all material times, the Member was employed by the Kawartha Pine Ridge District School Board (the “Board”) as a teacher at Crestwood Secondary School (the “School”) in Peterborough, Ontario.

3. The Member started teaching at the School in the 2009/2010 academic year. The Member knew that given his past history of medical problems over several years, the Board was offering him a final opportunity to establish that he was capable of performing the duties and responsibilities of a teacher in accordance with professional expectations. The Board made the Member’s continued employment subject to various terms and conditions. A copy of the Board’s letter to the Member dated June 30, 2009 regarding the foregoing is attached hereto as Exhibit “B”.

4. On October 2, 2009, the Member left the School early without notifying the administration. A copy of a letter from Principal Rielly to the Member dated November 11, 2009 is attached hereto as Exhibit “C”. The Member admits that on several prior occasions at another school, he has left the school premises early and not attended school without alerting the administration of the same.

5. On November 26, 2009, Principal Rielly met with the Member to address concerns about the Member’s conduct in the workplace and in regard to:

(a) complaints from staff and students;

(b) the Member’s conduct in regard to the manner in which he spoke to the Principal in the presence of other people in the School cafeteria;

(c) his failure to submit any long range plan despite having been asked to do so by the administration;

(d) his failure to submit any student marks to the Mark Book despite having been asked to do so by administration;

(e) his failure to provide a course outline to the English Department head and to students despite having been asked to do so by administration;

(f) his failure to provide his daybook to the Superintendent as requested;

(g) his failure to provide the student assessment records for the 5 week period since he had taken over the English class.

Attached hereto and marked as Exhibit “D” is a copy of the letter dated November 26, 2009 regarding the meeting.

6. The Member was suspended without pay for three (3) instructional days from November 30, 2009 to December 2, 2009.

7. On December 14, 2009, the Member’s performance was formally assessed and rated unsatisfactory by Principal Rielly in the following areas: Commitment to Pupils and Pupil Learning, Professional Knowledge, Professional Practice, Leadership in Learning Communities, Ongoing Professional Learning. Attached hereto and marked as Exhibit “E” is a copy of the Summative Report.

8. On December 18, 2009, an Improvement Plan was put in place for the Member. Attached hereto and marked as Exhibit “F” is a copy of the Improvement Plan.

9. The Member was absent from work on medical leave from January 21, 2010 until September 2010.

10. On September 1, 2010, Martin Twiss, the Superintendent of Education for the Board, sent the Member a letter confirming his continued employment at the School as of September 10, 2010. The Superintendent advised the Member that: “This accommodation remains your final opportunity to establish that you are capable of performing the essential duties and responsibilities of a teacher in accordance with professional expectations.” Attached hereto and marked as Exhibit “G” is a copy of the letter dated September 1, 2010 from the Superintendent.

11. On November 9, 2010, the Member’s performance was formally assessed and rated unsatisfactory by Principal Rielly in the following areas: Commitment to Pupils and Pupil Learning, Professional Knowledge, Professional Practice, Leadership in Learning Communities, Ongoing Professional Learning. Attached hereto and marked as Exhibit “H” is a copy of the Summative Report.

12. On November 16, 2010, an Improvement Plan was put in place for the Member. Attached hereto and marked as Exhibit “I” is a copy of the Improvement Plan.

13. On or after January 31, 2011, a female student educational assistant made a formal complaint to the administration about the Member making inappropriate remarks to her, which along with other inappropriate conduct involving the Member, was summarized in a letter from Principal Rielly to the Member dated February 18, 2011, attached hereto as Exhibit “J”.

14. On April 1, 2011, the Member’s performance was formally assessed and rated unsatisfactory by Principal Rielly. Attached hereto and marked as Exhibit “K” is a copy of the Summative Report.

15. It was noted in the Summative Reports that the Member, inter alia, failed to demonstrate an understanding of the curriculum; to provide an environment for his students which maximized their progress and development; to tailor his lessons to ensure that the needs of all students were met; to adequately assess and report student progress and achievement; or to engage in ongoing professional learning.

16. On or about April 28, 2011, following the three consecutive unsatisfactory performance appraisals, the Member’s employment with the Board was terminated. Attached hereto and marked as Exhibit “L” is a copy of the letter dated April 1, 2010 from Principal Rielly.

GUILTY PLEA

17. By this document, the Member admits, the truth of the facts and exhibits referred to in the paragraphs 1- 16 above (the “Admitted Facts”).

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

19. The Member hereby admits to the allegation of incompetence in that he displayed a lack of knowledge, skill or judgement that demonstrates that his certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

20. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.

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

JURISDICTION OF THE COMMITTEE

Although the Member’s Certificate of Qualification and Registration expired on September 19, 2012 (Exhibit 2, Tab A), the Committee notes that subsection 14(5) of the Ontario College of Teachers Act, 1996 states that a person whose certificate is cancelled continues to be subject to the jurisdiction of the College for professional misconduct and incompetence that took place while the person still held a certificate. As the Member’s conduct took place while he still held a Certificate of Qualification and Registration, the Committee has the jurisdiction to adjudicate this matter.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Jeremy Russell Davidson committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5) and 1(15).

The Committee also finds the Member to be incompetent in that he displayed a lack of knowledge, skill or judgment that demonstrates that his certificate should be made subject to terms, conditions or limitations, as defined in subsection 30(3) of the Ontario College of Teachers Act, 1996.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 of the Agreed Statement of Facts and Guilty Plea (Exhibit 2). He acknowledged that his behaviour, as described in the agreement, constituted professional misconduct and pleaded guilty to the allegations of professional misconduct. Furthermore, the Member admitted to the allegation of incompetence made against him. The Committee accepted the Member’s plea and the facts in the Agreed Statement of Facts and Guilty Plea.

The Member failed to show commitment to pupils and pupil learning, to show professional knowledge, to maintain professional practices, to demonstrate leadership in learning communities or to demonstrate ongoing professional learning. Further, the Member received three unsatisfactory Teacher Performance Appraisals (“TPAs”), and following both the first and second unsatisfactory appraisals, detailed improvement plans were put in place for the Member, and he was given clear expectations regarding his responsibilities. Despite all these measures, the Member failed to demonstrate an understanding of the curriculum, to provide an environment for his students that maximized their progress and development, to tailor his lessons to ensure the needs of all students were met, to adequately assess and report student progress and achievement or to engage in ongoing professional learning. Simply put, he did not demonstrate improvement in the areas identified in his growth plans.

The Member does not meet the level of competence that is required to teach.

Student safety is of paramount importance in the teaching profession. The Committee takes the Member’s neglect of this responsibility very seriously. Leaving school early or failing to attend without notification to administration is unacceptable.

Furthermore, a teacher is expected to be a role model for students by treating colleagues with dignity and respect. The Member made inappropriate and offensive comments of a sexual nature to his colleagues and publicly disrespected the administration.

It is noteworthy that the College did not have to go through a lengthy and costly discipline hearing because of the Member’s plea of guilt. This is certainly to his credit.

In light of the Member’s actions, the Committee finds that the Member is guilty of professional misconduct in that he failed to maintain the standards of the profession and to fulfill his teaching duties in accordance with the Education Act, in contravention of subsections 1(5) and 1(15) of Ontario Regulation 437/97. His difficulties in the classroom and his unsatisfactory appraisals also lead the Committee to find the Member to be incompetent.

UNDERTAKING OF THE MEMBER

College Counsel stated that, as the Member’s Certificate of Qualification and Registration has expired (Exhibit 2, Tab A), the Committee no longer has the jurisdiction to impose terms, conditions or limitations as part of its penalty order. Counsel for the College stated, however, that the Member has signed an undertaking to fulfill a number of terms, conditions and limitations. Counsel presented the Committee with the Undertaking and Acknowledgment of Jeremy Russell Davidson (Exhibit 4), which provides as follows:

I, Jeremy Russell Davidson hereby agree to all of the terms, conditions and limitations set out in this Undertaking and Acknowledgment. I hereby agree that prior to applying to commence any teaching position or any other position for which a Certificate of Qualification and Registration is required from the Ontario College of Teachers (the “College”):

(a) I will provide the Registrar of the College, at my own expense and in a form satisfactory to the Registrar, a written report from my treating physician or any other medical practitioner acceptable to the Registrar stating the following:

(i) confirming that I have been examined within the last thirty (30) days and the physician concluded that I am able to return to a full-time teaching position without risk of adverse consequences my colleagues, students and the public;

(ii) setting out any conditions and/or treatments required to be in place in order to permit me to teach successfully as described in (a) above; and

(iii) confirming that in the physician’s opinion, I am complying with all counselling and treatment recommended to me by that physician and other physicians who are treating me.

(b) I will enroll in and successfully complete at my own expense Additional Basic Qualification course for the Intermediate or Senior Division with a second teaching option from Schedule A of Regulation 184/97;

(c) I will enroll in and successfully complete at my own expense a course or courses of instruction pre-approved by the Registrar regarding lesson planning, student assessment, classroom management, and maintaining appropriate boundaries;

(d) I will, within thirty (30) days of my completion of the courses outlined in (c) above, provide to the Registrar a written certificate from the course provider stating that:

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

(ii) I have successfully completed the course.

I also agree that after completing the foregoing requirements, and if the College grants me a Certificate of Qualification and Registration:

(a) I will advise the Registrar at least thirty (30) days before returning to any part-time or full-time teaching duties (not including supply teaching or LTO less than 2 weeks) about the date of such return, the name of my employer, and the nature of said employment;

(b) I will ensure that my proposed employer for any part-time or full-time teaching duties (not including supply teaching or LTO less than 5 months) agrees to conduct and does conduct a performance appraisal within the first six (6) months of the commencement of my employment, and I will provide a copy of the report of such performance appraisal to the Registrar within thirty (30) days of their completion of same; and

(c) I will advise the Registrar at least ten (10) days after being accepted on the occasional teacher list of any employer about the name of my employer, and the nature of said employment.

I acknowledge my understanding about the scope, purpose and effect of my execution of this Undertaking and Acknowledgement and am executing same voluntarily and unequivocally. I have been informed about the prudence of seeking independent legal advice and have obtained such advice or chosen not to obtain such advice in connection with the execution of this Undertaking and Acknowledgment.

JOINT SUBMISSION ON PENALTY

In addition to the Member’s signed undertaking, Counsel for the College submitted a Joint Submission on Penalty (Exhibit 3) indicating the following:

The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

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

2. Directs that there be publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Member’s name should be published in the College’s official publication Professionally Speaking/Pour parler profession.

College Counsel stated that publication with name contributes to specific deterrence to the Member. By publishing the Member’s name, the Committee would ensure that the Member understands the seriousness of his conduct, despite only receiving a reprimand as a penalty. Through publication with name, the Committee would show that it does not condone the Member’s behaviour. Counsel for the College asserted that the allegations and findings in this matter are not based on the Member’s past medical history but rather on his supervision issues and his three unsatisfactory TPAs.

College Counsel also argued that publication with name satisfies the need for general deterrence to the profession. Members of the profession should recognize that the Committee takes the issue of student safety very seriously. The Member has admitted to leaving the school premises and failing to attend the school without notifying his principal, and his actions in this regard were not limited to an isolated incident. Counsel asserted that members of the profession should be cautioned that repeated incidents of misconduct will result in the publication of their name in the College’s official magazine.

Counsel for the College submitted that publication with name would be in the public interest and stated that transparency is one of the fundamental principles of Discipline Committee hearings. Hearings before panels of the Discipline Committee are public, and the decisions and reasons of panels are published on the College website. College Counsel stated that there is no principled reason to anonymize the Member’s name in the summary that would appear in Professionally Speaking/Pour parler profession.

Counsel for the College submitted that for these reasons, the Committee should publish the Member’s name.

Submissions of the Member

The Member submitted that his name should not be published in Professionally Speaking/Pour parler profession.

The Member stated that the information in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) only covers a portion of his teaching history and does not reflect his career as a whole. In particular, the Member indicated that the documents presented to the Committee only come from one particular school where he taught.

The Member explained to the Committee that he had completed his teacher education training in Australia. Although, it was a long year in a difficult environment, he had been successful in the program. The Member stated that, given his journey to become a teacher, losing his ability to teach has been very difficult for him.

The Member submitted that due to the three TPAs, he has been stripped of the ability to teach and has been humiliated in front of his peers, colleagues and members of his community. The Member stated that this was particularly difficult for him because he is from a small community, and he has already paid a tremendous price publicly. The Member submitted that he pleaded guilty to the allegations against him. He is now trying to rebuild his career as he believes that he could become a good educator again.

The Member asserted that transparency could be met if the facts of his case were published in the College’s magazine without his name. The only goals that would be achieved by the publication of his name would be further public humiliation to him and jeopardy to his ability to return to teaching.

Reply Submissions of College Counsel

College Counsel responded to the Member’s submission that the Agreed Statement only reflected a portion of the Member’s teaching career. Counsel stated that the allegations against the Member actually spanned from 2009 to 2012.

Counsel for the College spoke to the Member’s comments regarding the negative effects that publication would have on his attempts to rebuild his career. Counsel stated that this was not a sufficient argument to warrant non-publication of the Member’s name. Counsel stated that publication with name is expected by members of the profession and the public and added that there is no evidence that publication in this form will impact the Member’s ability to return to his teaching career.

Counsel went on to address the Member’s comments that he lives in a small community. College Counsel cautioned the Committee to reject the notion that publication is informed by geographical circumstances as it would indicate to the public that there are separate standards for teachers in cities and teachers in smaller communities. Counsel stated that there is only one standard, and it applies to all members of the profession.

Counsel for the College disputed the Member’s argument that publishing the facts of this case without his name will achieve the goal of transparency. Counsel stated that teachers are already aware that student safety is an important issue, but it is the publication of a teacher’s name that will make them reflect before engaging in misconduct.

Counsel for the College reiterated that, as the Member’s name will appear in the Committee’s decision on the College website and will therefore be in the public domain, there is no principled reason to withhold his name in Professionally Speaking/Pour parler profession.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the College’s public register.

2. 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

In determining whether the joint submission represented a sufficient penalty, the Committee took into account the Member’s undertaking. The Member has agreed to provide the Registrar with a report from his physician regarding his ability to return to teaching and has undertaken to successfully complete courses preapproved by the College Registrar. These courses will include focuses on lesson planning, student assessment, classroom management and appropriate boundaries.

Once the Member has given the Registrar a physician’s report and proof that he has completed the required courses, the College may consider granting the Member a Certificate of Qualification and Registration. In the event that the College does grant the Member a certificate, the Member has undertaken to advise the Registrar before returning to part-time or full-time teaching and to inform the Registrar if he has been accepted on any occasional teacher list. The Member also agreed to ensure that his future employer will conduct a performance appraisal within the first six months of his employment. The Committee expects that these measures will allow the Member to meet and maintain the standards of the profession.

In light of the measures set out in the Member’s undertaking, the Committee accepts the Joint Submission on Penalty (Exhibit 3), having determined that the proposed sanction is appropriate in these circumstances. In this case, a reprimand is required and acts as a specific deterrent. The recording of this reprimand on the Member’s public register record will function as a general deterrent to the profession.

The principle of general deterrence is also met through publication with name, which demonstrates that behaviour such as that in which the Member engaged is not acceptable. Publication also guarantees that the public trust will be maintained through the demonstration of appropriate penalty and transparency of process. The Committee considered the Member’s submissions regarding the impact that publication of his name would have on him, given that he lives in a small community. However, the Committee agrees with the College that there cannot be separate standards for teachers of large and small communities. The same standards apply to all. Furthermore, the Committee is of the view that publication with name is warranted in this matter as the Member’s misconduct was not limited to an isolated incident.

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

Date: May 22, 2014

Stefanie Achkewich, OCT

Chair, Discipline Panel

Robert Gagné

Member, Discipline Panel

Darlene Mead, OCT

Member, Discipline Panel