Ontario College of Teachers v Dingwall, 2014 ONOCT 35

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Dingwall, 2014 ONOCT 35

Date: 2014-04-01

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

Timothy Matthew Scott Dingwall, OCT, a member of the Ontario College of Teachers.

PANEL: Irene Dembek, OCT, Chair

Alexander (Sandy) Bass, OCT

Mel Greif

BETWEEN: ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Litigation Paraprofessional

• and – )

TIMOTHY MATTHEW SCOTT ) Simon Blackstone,

DINGWALL ) Ursel Phillips Fellows Hopkinson

(CERTIFICATE # 275665) ) Hopkinson LLP,

) for Timothy Dingwall

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: March 7, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on March 7, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated September 11, 2012 was served on Timothy Matthew Scott Dingwall (the “Member”), requesting his presence on September 25, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for March 7, 2014.

The Member was in attendance.

THE ALLEGATIONS

IT IS ALLEGED that Timothy Matthew Scott Dingwall 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 physically contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) 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;

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

Counsel for the College requested the withdrawal of allegations (b) and (d) of the Notice of Hearing, namely subsections 1(7.1) and 1(7.3) of Ontario Regulation 437/97. The Committee granted this request, and these allegations were subsequently withdrawn.

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. Timothy Matthew Scott Dingwall (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 Toronto District School Board (the “Board”) as a teacher at [XXX] (the “School”).

3. During the 2009 - 2010 academic year, the Member was the Grade [XXX] [XXX] teacher of a female student (“Student No. 1”). Between the end of November 2009 and the end of January 2010, the Member engaged in an inappropriate and unprofessional relationship with Student No. 1. The inappropriate and unprofessional relationship with Student No. 1 included:

(a) going out with her for coffee and/or a meal after school hours and on the weekends on more than one occasion;

(b) attending a movie with her on one occasion;

(c) driving her in his motor vehicle, including but not limited to, to and from the events described in (a) and (b) above;

(d) hugging when they greeted each other or were saying goodbye, during which Student No. 1 says they kissed on the cheek on occasion, which the Member denies;

(e) talking in person and talking on the phone with her about non-school matters, including personal matters; and

(f) giving her a book as a gift.

4. During the relationship, the Member expressed to Student No. 1 on several occasions that their relationship was wrong and they should not be seeing each other outside of school.

5. Some of the out of school activities engaged in by the Member and Student No. 1 described above were at the suggestion of Student No. 1.

6. During the relationship, there was no sexual contact between the Member and Student No. 1 and no discussions or other conduct of a sexual nature.

7. On August 20, 2011 the Board disciplined the Member for having engaged in an inappropriate relationship with Student No. 1, and suspended the Member for 20 days. The Member did not grieve this suspension.

GUILTY PLEA

8. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 7 above (the “Admitted Facts”).

9. 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), 1(7.2), 1(15), 1(18 - unprofessional), and 1(19).

10. 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 his counsel 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 with the advice of legal counsel.

11. 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.

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 Timothy Matthew Scott Dingwall committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18 - unprofessional), and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Admitted Facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) constitute behaviour that is professional misconduct and pleaded guilty to the allegations of professional misconduct against him. The Committee accepts the Member’s guilty plea and the statement tendered by the parties.

The Member engaged in what is considered to be highly inappropriate behaviour with a student in his care. The Member drove with Student No.1 in his personal vehicle over an extended period of time to a variety of destinations, and these destinations were not part of any of his professional duties. Furthermore, the Member gifted the student with a book and spoke to the student on the phone about non-school matters. Finally, the Member hugged the student regularly as a form of greeting and farewell. The Member admitted to the behaviours cited above, but maintained that he did tell Student No. 1 that their relationship was inappropriate and that they should not see each other outside of school. The Member also stated that many of the activities were at the suggestion of Student No. 1. Throughout, there was no sexual contact between the Member and Student No.1. As well, there was no evidence of behaviour of a sexual nature. The Member was disciplined by his board because of the inappropriate relationship with Student No. 1 and received a suspension for a period of twenty days.

In light of the Member’s behaviours, the Committee finds that the Member committed professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18 - unprofessional), and 1(19).

JOINT SUBMISSION ON PENALTY

Counsel for the College and counsel for the Member submitted a Partial 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 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, or limitations 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 violations;

(b) within thirty (30) days of his completion of the course outlined in (a) above, 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 document 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. 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 this issue.

PENALTY SUBMISSIONS

Submissions of College Counsel

Counsel for the College submitted that the Committee should accept the Partial Joint Submission on Penalty as its different elements help achieve the goals of deterrence, rehabilitation and public protection. A reprimand contributes to specific deterrence as it allows the Committee to interact directly with the Member and express concerns about his conduct. A course in boundary violations would play a role in the Member’s rehabilitation and would therefore help protect members of the public. Furthermore, publication of the Committee’s findings and orders provides the public with a window into the processes of the Committee and the profession.

In addition to asking that the Partial Joint Submission on Penalty be accepted, counsel for the College requested that the Committee suspend the Member’s Certification of Registration and Qualification for a period of one month. In support of this position, College counsel cited four recent Discipline Committee decisions, Ferris, Keyte, Williams and Schnabel.

In each of the four matters, a teacher was either suspended or revoked after engaging in an inappropriate relationship with a female student. Similar to the Member’s relationship with Student No. 1, the boundary violations described in these cases generally involved electronic communication, personal conversations and social interactions outside of school. College counsel also noted that the present matter is similar to the Keyte and Williams decisions because much like Mr. Keyte and Mr. Williams, the Member knew that what he was doing was wrong but chose to engage in an inappropriate relationship with a student anyway.

College counsel stated that the College is not seeking a longer suspension as the Member has already been suspended by his school board and has not been involved in another incident of misconduct since being disciplined by his board. However, counsel for the College still held that a suspension is necessary as the Member’s inappropriate relationship with Student No. 1 lasted three months and involved multiple incidents.

With respect to the publication of the Member’s name in Professionally Speaking/Pour parler profession, College counsel stated that publication with name was ordered in the Ferris, Keyte and Schnabel matters. Counsel for the College argued that the Member’s name should be published in the College’s official magazine, stating that the Committee would need a compelling reason to withhold the Member’s name, given that the hearing itself was public.

Submissions of Member’s Counsel

Counsel for the Member submitted that the Member’s misconduct does not warrant a suspension of any length and argued that the cases presented by College counsel are not relevant precedents. In three of the four cases, there was a joint submission on penalty whereby the parties agreed to a suspension or revocation. In the present proceeding, however, the Member is contesting the suspension of his certificate. Furthermore, the teachers in the four decisions cited by College counsel were not suspended by their school boards, and therefore, a Committee-imposed suspension was needed to specifically remediate the members in those cases. By contrast, the Member has already been suspended by his school board and has therefore undergone sufficient remediation.

In order to demonstrate that the Member’s teaching certificate should not be suspended, Member’s counsel cited Discipline Committee decisions McCuaig, Tallarico, De Marchi, Karrow and Rémillard. In four of the five cases, the teacher in question was found guilty of engaging in an inappropriate relationship with a student but was not suspended. The one matter that led to a suspension was the Rémillard case, but even then, Mr. Rémillard could avoid being suspended if he completed coursework within a certain period of time. Member’s counsel stated that if the Committee determines that it is necessary to impose a suspension on the Member’s certificate, the suspension should be conditional as it was in the Rémillard case.

Counsel for the Member submitted, however, that any form of suspension is not truly warranted. The Member has never been previously disciplined by the Committee, but a suspension could incite the Member’s school board to terminate his employment, which could grievously affect his career. After the incidents with Student No. 1, the Member took coursework, transferred to a different school and worked toward his re-establishment as a professional. Member’s counsel noted that the Member’s school board suspension is already mentioned in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) and will therefore be included in the Committee’s decision, which would be accessible to the public. The imposition and publication of a second suspension would not serve to inform or educate the public.

With respect to the issue of publication, counsel for the Member argued that publication of the Member’s name in Professionally Speaking/Pour parler profession is not necessary as his name will already be made public in the Committee’s decision. This decision will be on the College’s website and would reach a wider public than the College’s magazine. Professionally Speaking/Pour parler profession, however, is well known within the teaching community, and if the Member’s name were to appear in this publication, the Member’s career could be adversely affected.

Reply Submissions of College Counsel

In response to the arguments of Member’s counsel regarding publication, counsel for the College stated that since the Member’s name will be published on the College’s website, the Member will not be anonymous to the public, and it would only be logical and consistent to publish his name in Professionally Speaking/Pour parler profession as well.

College counsel disagreed with the argument of Member’s counsel that the Committee should not suspend the Member as it might lead to the termination of his employment. Counsel stated that the Committee should not base its penalty order on speculation.

Counsel for the College submitted that while Member’s counsel had asked the Committee to disregard the College’s cases because the penalties in these matters were largely based on agreements, most of the decisions presented by counsel for the Member were also based on agreements.

PENALTY DECISION

The Committee makes the following order as to penalty:

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

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

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

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

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

(ii) the Member has successfully completed the course.

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

REASONS FOR PENALTY DECISION

The Committee carefully assessed the arguments presented by both counsel in determining an appropriate penalty. The Member and the College accepted the fundamental elements of the penalty, that being a reprimand, a successfully completed boundaries course and publication in the official publication of the College. It was left to the Committee to determine any additional penalties. The two major additions were a suspension and publication with name.

The Committee agreed that a reprimand was appropriate in that the Member needed to have a specific deterrent to help him understand the serious nature of his misconduct. The registration of a reprimand in the Member’s record will additionally serve as a general deterrent, and most important, will signal to the public that the maintenance of appropriate and respectful relationships continue to be of paramount importance to the College in its protection of the public trust.

According to Member’s counsel, the Member, prior to the hearing, had completed a boundaries course. The Committee accepted this information but still made a formal statement about the course being a requirement as part of the penalty decision. The Member is instructed to complete a course, and to ensure that it is subject to the approval of the Registrar. He is also to provide the Registrar with a written certificate that the provider of the course had reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty. This statement must also notify the Registrar of the successful completion of this course. Subject to these conditions being met, the Committee is satisfied that the Member will have completed this particular course requirement as stated above.

The Committee assessed the Member’s action in completing a course before this hearing as a significant mitigating factor in evaluating the nature of the penalty.

There were other mitigating factors that assisted the Committee in determining an appropriate penalty. The Member was already suspended for twenty days by his board, but was returned to teaching by his employers and has been successfully teaching in another school for the past four years without any further issues. The Committee accepted the argument that a further suspension would have a negative impact and serve no specific deterrent, but most important, no general deterrent. The Committee also noted that the Member did try to end the relationship, and most important, understood the ethical standards that had been breached. The Member cooperated fully with the investigation and the negotiations to produce an agreement and voluntarily agreed to all the consequences that followed his misconduct. The Member did not grieve the decision of his employer to suspend him for twenty days, instigated his own rehabilitative coursework and accepted a transfer to a different school, where he has successfully re-established himself in his teaching career. The Committee took these significant mitigating factors into account when the Committee determined that no further suspension was warranted. The Committee accepted the argument that the twenty-day suspension by the employer, which was, in effect, a one-month work suspension, was sufficient.

The Committee takes its responsibility to provide for general deterrence in its decisions seriously. In the matter of publication, the only way to educate the profession and signal the seriousness of the type of behaviour engaged in by the Member is to publish with as much information as possible, and most important, with the Member’s name. Therefore, the Committee is confident that it is appropriate to publish the Member’s name as a significant element of the penalty.

Finally, the maintenance of the public trust is continually paramount. This penalty, with its many elements, will serve to demonstrate both transparency and consistency.

Date: April 1, 2014

Irene Dembek, OCT

Chair, Discipline Panel

______________________________ Alexander (Sandy) Bass, OCT

Member, Discipline Panel

Mel Greif

Member, Discipline Panel