Ontario College of Teachers v De Petrillo, 2014 ONOCT 33

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v De Petrillo, 2014 ONOCT 33

Date: 2014-01-16

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

Vincenzo De Petrillo, OCT, a member of the Ontario College of Teachers.

PANEL: Christine Bellini, OCT, Chair Mel Greif

Hanno Weinberger, OCT

BETWEEN: ) Eli Mogil,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

• and – )

VINCENZO DE PETRILLO ) Alex Munoz,

(CERTIFICATE #251339) ) Markle Munoz LLP

) for Vincenzo De Petrillo

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: January 16, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on January 16, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing, dated March 15, 2012 was served on Vincenzo De Petrillo (the “Member”), requesting his presence on April 17, 2012 to set a date for a hearing and specifying the charges. The hearing was subsequently set for January 16, 2014.

The Member was in attendance at the hearing and was represented by Alex Munoz of Markle Munoz LLP.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing (Exhibit 1) dated March 15, 2012 are as follows:

IT IS ALLEGED that Vincenzo De Petrillo is guilty of professional misconduct as defined in subsection 30(2) 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he failed to comply with 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);

(e) he contravened a law, the contravention of which is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he contravened a law, the contravention of which has caused or may cause a student or students who is under the Member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(g) 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

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

Counsel requested that allegations (b) [Ontario Regulation 437/97 1(7)] and (d) [Ontario Regulation 437/97 1(15)] in the Notice of Hearing be withdrawn. The Committee concurred with this request.

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

AGREED STATEMENT OF FACTS

1. Vincenzo De Petrillo (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

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

3. The Student was a [XXX] year old male student in the Member’s [XXX] class.

4. On or about October 20, 2009, while the Student was entering his class, he was speaking to a classmate and during the course of the conversation the Student was sitting next to the Member.

5. The Student, while speaking to his classmate, swore during the conversation.

6. The Member did not like that the Student swore and struck the Student on his face with an open hand.

7. The Student was angered by what the Member had done and stated that the strike was hard enough that he felt a stinging feeling on his face. The blow was not severe and no bodily harm was caused.

8. On or about November 12, 2009, the Member was criminally charged that he, on or about October 20, 2009, at the City of Vaughan in the Regional Municipality of York, did commit an assault on the Student, contrary to section 266 of the Criminal Code (Canada).

9. On or about December 16, 2010, the Member was found guilty of the charge described in paragraph 9 above and was granted a conditional discharge and placed on nine (9) months’ probation and was required to perform twenty (20) hours of community service within six (6) months of the conviction. Attached and marked as Exhibit “B” is a certified copy of the Information. Attached and marked as Exhibit “C” is a certified copy of the Probation Order dated December 16, 2010. Attached and marked as Exhibit “D” is an excerpt of the plea proceedings dated December 16, 2010.

10. On or about September 23, 2011, the Member appealed the finding of guilt and sentence. Both the finding and sentence were upheld by the Superior Court of Justice.

11. By this document, the Member admits, the truth of the facts and the Exhibits referred to in paragraphs 1 to 10 above (the “Admitted Facts”)

GUILTY PLEA

12. The Member hereby acknowledges that the Admitted Facts referred to in paragraphs 6 to 10 above, constitute conduct which is professional misconduct, and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(16), 1(17), 1(18) and 1(19).

13. 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 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.

14. In light of the admitted facts and circumstances and plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Vincent De Petrillo committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(16), 1(17), 1(18) and 1(19).

REASONS FOR DECISION

The Member acknowledged that the agreed facts referred to in paragraphs 6 to 10 (Exhibit 2) constitute behaviour that is professional misconduct and pleaded guilty to the allegations of professional misconduct against him. The Committee therefore accepted the Member’s guilty plea and the facts in the Agreed Statement of Facts and Guilty Plea.

By his actions, the Member was found to have committed an act of professional misconduct. During a [XXX] grade class, the Member was sitting next to a student who entered into a conversation with another student during which conversation, the student swore. The Member took offense at the use of such language and reacted by striking the student across the face with an open hand. This form of physical discipline, although leaving no mark, did hurt the student and resulted in a complaint by the parent of the student. This complaint culminated in a criminal investigation. The Member was charged and found guilty of assault (Exhibit 2, Tab B). The Member was assigned a nine-month probation and was required to perform twenty hours community service within six months of the conviction. Subsequently, a conditional discharge was granted. The Member appealed the finding of guilt and ensuing sentence, and both findings of guilt and sentence were upheld by the Ontario Superior Court of Justice.

JOINT SUBMISSION ON PENALTY

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

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

(a) directs that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

(b) directs the Registrar to impose the following terms, conditions, and limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, and limitations to be recorded on the Register until such time as they are fulfilled:

(i) the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary issues and boundary violations.

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

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

B. the Member has successfully completed the course.

(c) directs that there be publication of the findings and Order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession.

2. The Ontario College of Teachers and the Member do not agree, and arguments will be heard, in respect to:

(a) Whether this Committee should order the publication of the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.

(b) Whether this Committee should order a suspension, even if not imposed but only noted on the Register.

PENALTY SUBMISSIONS

Submissions of College counsel

College counsel submitted that a reprimand was appropriate in this case since it would act as a specific deterrent. The nature of the misconduct warranted a reprimand. College counsel argued that a course specifically designed to address the misconduct would allow for remediation and satisfy the need of the profession and the public to know that a process of improvement is to take place.

College counsel asked that there be a publication with name for the following reasons. Publication with name acts a general and specific deterrent and sends a message to the public and the profession that this behaviour is not acceptable. The hearing was an open hearing and therefore, publication with name is consistent with the expectations for transparency. College counsel maintained that publication with name was “set” when the Member was found guilty, his appeal was not upheld, and the conviction was placed on the public record.

College counsel introduced the issue of a thirty-day suspension. A reprimand, coursework and publication without name, considering the Member had a criminal conviction, is not commensurate with the nature of the misconduct and would be seen as bringing the administration of justice into disrepute. A thirty-day suspension and publication with name is appropriate in a criminal finding, such as this misconduct.

Submissions of Member’s counsel

Counsel for the Member agreed that the reprimand and a course were appropriate in this matter. Publication with name for a four-year-old incident could only be seen as punitive. A reprimand and a course act as a sufficient deterrent to the Member, reflect a positive process of rehabilitation, and act as a general deterrent to the profession.

A suspension could have a negative impact on the Member’s dealings with his employer. Counsel for the Member reminded the Committee that the penalty should not be disproportionate and that rehabilitation should be the goal of penalties.

Counsel for the Member cited a number of mitigating factors. The Member had no prior complaints against him in a thirty year career. This was an isolated incident.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is required to appear before the Committee immediately following the hearing to be reprimanded, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

2. The Registrar is directed to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions, and limitations are to be recorded on the Register until such time as they are fulfilled:

a. the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding boundary issues and boundary violations.

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

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

ii. the Member has successfully completed the course.

3. The findings and orders of the Committee shall be published in summary, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee determined that the Joint Submission on Penalty presented by the parties is appropriate and proportional to the misconduct committed by the Member.

A reprimand addresses the need for a specific deterrent and will counsel the Member to consider his actions in the future. Coursework will provide the Member with strategies for effective classroom management and, therefore, satisfies the need for rehabilitation. Publication with name is determined by the Member’s misconduct, serves as a general deterrent, and demonstrates the appropriate level of transparency.

A thirty day suspension was considered by the Committee. The Committee considered all the aggravating and mitigating factors and determined that the level of misconduct did not warrant any type of suspension.

The penalty as a whole satisfies the mandate of the College to maintain the public trust and protect public education.

Date: January 16, 2014

Christine Bellini, OCT

Chair, Discipline Panel

______________________________ Mel Greif

Member, Discipline Panel

Hanno Weinberger, OCT

Member, Discipline Panel