Ontario College of Teachers v Doran, 2014 ONOCT 36

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Doran, 2014 ONOCT 36

Date: 2014-05-08

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

Rick William Doran, a member of the Ontario College of Teachers.

PANEL: Pauline Smart, Chair Louis Sloan, OCT Darlene Mead, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Caroline Zayid, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Bev Hodsdon, Law Clerk

• and –

RICK WILLIAM DORAN (CERTIFICATE #484774) William Markle and W. Alejandro Munoz, Markle Munoz LLP for Rick William Doran

Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: May 7, 2014

DECISION, REASONS FOR DECISION AND ORDERS

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

Prior to the hearing of this matter, Rick William Doran (the “Member”) was served with three Notices of Hearing, which outlined the allegations brought against him. The first Notice of Hearing (Exhibit 2) was issued on January 5, 2010. The second Notice of Hearing (Exhibit 3) was issued on March 4, 2010. Then, on May 2, 2014, an Amended Notice of Hearing (Exhibit 1) was issued, requesting the Member’s attendance before the Discipline Committee on May 7, 2014 for the hearing of this matter.

The Member was in attendance at the hearing.

At the outset of the hearing, Counsel for the College brought a motion to seek leave from the Committee to withdraw the allegations set out in the two Notices of Hearing issued in 2010, and dated January 5, 2010 and March 4, 2010. Counsel indicated that the Amended Notice of Hearing dated May 2, 2014 captured all the allegations that the College could prove and that the hearing should proceed on the basis of the Amended Notice of Hearing (Exhibit 1) only.

Independent legal counsel advised the Committee that Rule 13(13) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee gave the Committee the jurisdiction to make an order to withdraw Notices of Hearing.

Having considered the submissions made by Counsel, the Committee authorized the College to withdraw the allegations of professional misconduct against the Member set out in the two Notices of Hearing dated January 5, 2010 and March 4, 2010. The Committee therefore proceeded on the basis of the allegations of professional misconduct set out in the Amended Notice of Hearing (Exhibit 1).

THE ALLEGATIONS

The allegations against Rick William Doran (the “Member”) in the Amended Notice of Hearing (Exhibit 1) are as follows:

IT IS ALLEGED that Rick William Doran is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (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, sexually, verbally, psychologically or emotionally, 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 Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection and (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 may cause a student to be put at or 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 for the College requested the withdrawal of allegation (b) of the Amended Notice of Hearing, namely subsection 1(7) of Ontario Regulation 437/97. The Committee granted this request, and this allegation was 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 4), which provides as follows:

1. Rick William Doran (“the Member”) is a member of the Ontario College of Teachers, having been issued a certificate of qualification on November 18, 2004. 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 Windsor-Essex Catholic District School Board and taught at two schools of the Board, namely [XXX] and [XXX], respectively.

3. Between September 1, 2005 and September 30, 2005, the Member, while teaching at [XXX], on one or more occasions used his wet thumb to clean around the mouth of Student #1, a student under the age of 14.

4. Between September 6, 2005 and May 3, 2006, the Member, on at least five occasions, patted Student #2, a student under the age of 14, on the buttocks over his clothing. These pats occurred during gym activities, in the classroom and at the movies.

5. Between September 2, 2008 and January 6, 2009, while a teacher at [XXX], the Member, on one or more occasions, slapped Student #3, a student under the age of 14, on his buttocks.

6. Between September 2, 2008 and January 6, 2009, while a teacher at [XXX], the Member, on one or more occasions, patted Student #4, a student under the age of 14, on his buttocks.

7. On November 18, 2010, before the Honourable Madam Justice R. Pomerance, the Member was arraigned on four counts of assault and the Member pleaded guilty to assaulting the students, as described in paragraphs 3, 4, 5, and 6 above, contrary to section 266 of the Criminal Code. Attached hereto and marked as Exhibit “B” is a copy of an excerpt the proceedings at guilty plea and reasons for sentence before the Honourable Madam Justice R. Pomerance.

8. On November 18, 2010, the Member received a suspended sentence with a term of two years’ probation. Attached hereto and marked as Exhibit “C” is a certified copy of the Certificate of Conviction.

9. The Member’s employment with the Board was terminated effective May 27, 2009.

10. On October 23, 2009, the Executive Committee made an interim order directing the Registrar to suspend the certificate of qualification and registration of the member until the complaint against the member is disposed of by the Discipline Committee.

GUILTY PLEA

11. 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 10 above (the “Admitted Facts”).

12. The Member hereby acknowledges that the Admitted Facts referred to in paragraph 3 to 7 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(7.1), 1(15), 1(16), 1(17), 1(18), 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 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.

14. 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 College Counsel and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Rick William Doran committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(16), 1(17), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 above (the “Admitted Facts”) and acknowledged that the Admitted Facts referred to in paragraphs 3 to 7 above constitute conduct which is professional misconduct. He further admitted the allegations of professional misconduct against him 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 Committee finds that the Member’s assaults of children in his care and his resultant criminal conviction for simple assault constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(16), 1(17), 1(18) and 1(19).

JOINT SUBMISSION ON PENALTY

Counsel for the College and Counsel for the Member submitted a Joint Submission on Penalty (Exhibit 5) 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 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”);

(b) directs the Registrar of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months, with such suspension having been served from February 4, 2014 to May 6, 2014. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately.

(c) 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:

(i) prior to commencing any position for which a Certificate of Qualification and Registration is required, 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 document 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.

(d) 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 PENALTY

Submissions of College Counsel

College Counsel submitted that there was a Joint Submission on Penalty, yet the parties had not come to an agreement regarding the publication of the Member’s name in the College’s official magazine, Professionally Speaking/Pour parler profession.

College Counsel spoke to the different elements of the penalty. With respect to the reprimand and coursework, College Counsel stated that these measures were appropriate and proportionate to the Member’s misconduct, and would contribute to the rehabilitation of the Member and the protection of the public. In particular, Counsel stated that the course would help ensure that the Member understands appropriate physical boundaries between teachers and students.

College Counsel stressed that the Member’s conduct warranted a three-month suspension to be recorded on the College’s public register. Counsel for the College agreed to the suspension having already been served, from February 4 to May 6, 2014, given that the Member has been suspended for a lengthy period of time. The College’s Executive Committee had imposed an interim suspension on the Member’s Certificate of Qualification and Registration, which began as of October 23, 2009 and was in effect up to the day of the hearing. While the parties felt that it would be excessively punitive to have the Member serve a further suspension, College Counsel stated that it was important for the suspension to be part of the penalty and for this measure to be recorded in the Committee’s decision.

Counsel for the College spoke to the mitigating factors of the case. Counsel stated that the Member had pleaded guilty during his criminal proceeding as well as during the hearing before this Committee. By admitting guilt, the Member waived his right to a full hearing and spared young witnesses from coming to the College to testify. Counsel for the College submitted that in light of these mitigating circumstances, the proposed penalty was appropriate and would sufficiently serve the goals of specific deterrence, general deterrence and protection of the public interest.

Counsel for the College submitted that, despite the mitigating circumstances, there were also a number of aggravating factors, and the Committee should therefore publish the Member’s name. College Counsel argued that the Member’s conduct was not on the lowest end of the spectrum. While the behaviour was not of a sexual nature or physically injurious, College Counsel emphasized that the repeated nature of the Member’s physical misconduct, despite multiple warnings, was a strong aggravating factor. For this reason, the Committee should be concerned with specific deterrence.

College Counsel presented two Discipline Committee decisions for the Committee’s consideration. These two cases, although not identical, demonstrate that similar conduct warrants penalties of a similar nature.

Counsel for the College submitted that publication with name would demonstrate the transparency and openness of the Committee’s proceedings. Members of the public and the profession take publication with name seriously as it sends a message that this type of misconduct will not be tolerated.

Submissions of Member’s Counsel

Counsel for the Member provided context to the case, focusing on the Member’s character, past accomplishments and community involvement. Member’s Counsel described the Member’s behaviour as being at the low end of the spectrum and stated that the Member had an unblemished record prior to the incidents listed in the Agreed Statement of Facts and Guilty Plea (Exhibit 4).

Counsel for the College further submitted that the Member has, to date, abided by and met all the conditions imposed by the court and the College. Member’s Counsel asserted that this has been a long process for the Member. In the view of Member’s Counsel, the goals of rehabilitation and specific deterrence have been met. The Member has had an interim suspension on his certificate from 2009 to 2014, and this four-and-a-half year suspension is significantly greater than the proposed three-month suspension. Member’s Counsel stated that the Member was also suspended by his school board without pay in January 2009, and his employment was terminated in June 2009. Counsel for the Member submitted that the proceedings have been “personally very upsetting” for the Member, and he has suffered a significant financial loss.

Member’s Counsel insisted that a specific deterrent is not needed in this case. The Member has understood the message, “Be careful” and “Don’t touch a student”.

Member’s Counsel opposed publication of the Member’s name, citing the Member’s circumstances as well as a concern that publication in this form could expose and reoffend the students involved.

Member’s Counsel provided the Committee with a Member’s Book of Authorities for consideration.

In conclusion, Member’s Counsel stated that both parties agree that the Joint Submission on Penalty is an acceptable solution to a difficult situation.

PENALTY DECISION

The Committee makes the following order as to penalty:

(a) 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 Register of the Ontario College of Teachers (the “Register”);

(b) The Registrar of the Ontario College of Teachers (the “Registrar”) is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months, with such suspension having been served from February 4, 2014 to May 6, 2014. The fact of the suspension set out in this paragraph is to be recorded on the Register.

(c) 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 Register until such time as they are fulfilled:

(i) prior to commencing any position for which a Certificate of Qualification and Registration is required, 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 exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

B. the Member has successfully completed the course.

(d) 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

The Committee determined that the Joint Submission on Penalty (Exhibit 5) was proportionate to the misconduct committed by the Member and appropriate in the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties.

The reprimand and coursework serve an educational function as they provide the Member with an assessment of his conduct and reinforce the necessity to maintain appropriate professional boundaries. Coursework focusing on appropriate boundaries between teachers and students ensures the rehabilitation of the Member and the protection of the public.

The Committee agreed with the submissions of both Counsel that a suspension of three months was appropriate in this case and that the suspension should be retroactive. Given that the Member has been suspended from 2009 to the time of the hearing, an additional suspension from that date forward would be unjust, punitive and excessive.

While Member’s Counsel argued that publication with name could identify the victims, there has been no evidence presented to the Committee that publication of the Member’s name would lead to identification of the students. The Committee also noted that, despite the fact that the Member had been previously cautioned with respect to appropriate boundaries, he continued to engage in misconduct. The Committee determined that publication of the Member’s name is warranted in this matter.

Publication with name speaks and contributes to the transparency of the discipline process. Publication of the findings and order of the Committee, in summary, with the name of the Member, in Professionally Speaking/Pour parler profession provides both a specific deterrent to the Member and a general deterrent to the profession while advising and serving the public interest. Publication with name assures the public that the College will not tolerate such behaviour and will ensure that this type of misconduct will garner such a penalty.

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

Dated: May 8, 2014

Pauline Smart Chair, Discipline Panel

Louis Sloan, OCT Member, Discipline Panel

Darlene Mead, OCT Member, Discipline Panel