Ontario College of Teachers v. Floro, 2014 ONOCT 39

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Floro, 2014 ONOCT 39

Date: 2014-01-21

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

Peter Jeffrey Floro, a member of the Ontario College of Teachers.

PANEL: Pauline Smart, Chair Stefanie Achkewich, OCT

Darlene Mead, OCT

BETWEEN: ) Andrew Matheson,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Litigation Paraprofessional

• and – )

PETER JEFFREY FLORO ) Jennifer Micallef,

(CERTIFICATE #280810) ) Ursel Phillips Fellows

) Hopkinson LLP,

) for Peter Jeffrey Floro

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) Heard: January 21, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on before a panel of the Discipline Committee (the “Committee”) on January 21, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

Two Notices of Hearing dated December 21, 2012 (Exhibit 1) and December 20, 2012 (Exhibit 2) were served on Peter Jeffrey Floro (the “Member”), requesting his presence on January 17, 2013 to set a date for a hearing and specifying the charges.

Counsel for the College requested that the Notice of Hearing dated December 21, 2012 be withdrawn and asked that the Committee proceed with the Notice of Hearing dated December 20, 2012. The Committee subsequently allowed the Notice of Hearing dated December 21, 2012 to be withdrawn.

The hearing was set for January 21, 2014. Although the Member was not in attendance, he was represented by Jennifer Micallef from Ursel Phillips Fellows Hopkinson LLP.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated December 20, 2012 (Exhibit 2) are as follows:

IT IS ALLEGED that Peter Jeffrey Floro 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 or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students 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 3), which provides as follows:

1. At all material times, Peter Jeffrey Floro (“the Member”) was 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 with respect to the Member.

2. At all material times, the Member was employed by the Toronto District School Board (“the Board”) as a secondary school teacher. During the academic years 2008-2009 and 2009-2010, and the calendar year 2010, the Member taught at [XXX].

3. Students No. 1, No. 2, and No. 3 are three females who at the material time, were students at [XXX], [XXX] in or around. Student No. 4 was at the material time a female student at [XXX]. She [XXX] in or around

4. During [XXX] and [XXX], the Member engaged in inappropriate communications, which included making comments of a sexual nature, with Students No. 1, No. 2, and No. 3 (“the Students”). The communications included, but were not limited to:

(a) engaging in inappropriate electronic communications with the Students;

(b) commenting to Student No. 1 that she was his favourite student;

(c) telling Student No. 2 that she looked healthier and had larger breasts than she had in the previous year;

(d) telling Student No. 2 to call him when she wanted a real man;

(e) counselling Student No. 2 on how to use drugs, specifically marijuana;

(f) discussing with Student No. 3 his earlier sexual experiences, and offering sexual services to her;

(g) asking Student No. 3 what she thought about while masturbating, whether she was “shaved or trimmed”, and whether she watched pornography;

(h) telling Student No. 3 that he wanted to see her naked; and

(i) inviting Student No. 3 to his home.

5. In or around June 2010, at the Member’s home, physical contact of a sexual nature occurred between the Member and Student No. 4, including but not limited to kissing and sexual touching.

6. An extensive investigation of the allegations was undertaken by the Board. Attached hereto and marked as Exhibit “B” is a copy of the Board’s February 6, 2012 letter to the Member which summarizes the findings of the Board’s investigation of the allegations.

PLEA OF NO CONTEST

7. By this document, the Member does not contest the facts and exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”).

8. The Member hereby acknowledges that the Uncontested Facts referred to 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 the alleged conduct constitutes sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

9. By this document the Member states that:

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

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee, and that the Committee can accept as correct the facts alleged against him for the purposes of the proceeding only;

(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/her 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.

10. In light of the uncontested facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

Counsel for the College submitted a Plea Inquiry executed by the Member (Exhibit 4).

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 Peter Jeffrey Floro 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) and sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

The Member acknowledged the Uncontested Facts in the Statement of Uncontested Facts and Plea of No Contest (Exhibit 3) constituted behaviour that is 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.

The Committee accepts the Member’s admission to engaging in inappropriate electronic communication, including social media, and making comments of a sexual nature to all four students. The Committee also accepts his admission to inappropriate sexual contact with Student No.4, which included kissing and sexual touching. The Committee finds that the Member’s actions, as outlined in Exhibit 3, constitute professional misconduct, 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 Student No. 4, of a nature as defined in sections 1 and 40(1.1) of the Act.

JOINT SUBMISSION ON PENALTY

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

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.

PENALTY SUBMISSIONS RE: PUBLICATION

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. Counsel stated that there was no presumption in favour of publication with name and cited mitigating circumstances for the Committee to consider. Counsel noted that the Member has agreed to the publication of the facts and penalty, thus sparing the students the burden of appearing and testifying. Furthermore, Member’s counsel stressed that the events were quite dated and occurred over four years old. Counsel submitted that the Member has moved on significantly with his life and that publication with name could have a negative impact on his new career path.

Member’s counsel advised the Committee that the Member’s sexual contact with Student No. 4, namely kissing and sexual touching, was not at the highest end of spectrum. In addition, this sexual contact occurred after the student’s graduation.

Counsel for the Member submitted that both specific and general deterrence can be met without the publication of the Member’s name. With respect to specific deterrence, Counsel argued that the Member has already gone through a criminal investigation and the termination of his employment, has agreed to the revocation of his certificate and will not be able to teach in Ontario.

Counsel stated that revocation of the Member’s certificate is a very significant general deterrent, and that the publication of the findings without the Member’s name meets the need for transparency. Therefore, counsel for the Member submitted that the Member’s name should be anonymized in in the College’s publication Professionally Speaking/Pour parler profession.

Submissions of College counsel

With respect to the assertion of Member’s counsel that the sexual contact with Student No. 4 occurred after her graduation, counsel for the College argued that this issue does not detract from the seriousness of the Member’s conduct and is still considered to be a severe breach. Further, College counsel submitted that the definition of sexual abuse is not confined to contact but may also include comments of a sexual nature. Counsel noted that the Member made such comments to each of the students while they were still attending the school.

Counsel for the College submitted that the Member’s name should be published in the College’s publication Professionally Speaking/Pour parler profession. To illustrate this position, counsel for the College offered two similar-fact cases for consideration by the Committee, Tariq Saeed Khan v. Ontario College of Teachers and Thomas Gerard Nevins v. Ontario College of Teachers. Both cases had an agreed statement of uncontested facts, a plea of no contest and a joint submission on penalty, but publication with name was also in dispute. In both cases, inappropriate communication with students was an issue, as well as sexual touching and/or relationships. Ultimately, publication with name was deemed to be the appropriate penalty in both cases due to the need for transparency and to maintain the public trust. Counsel for the College submitted that these two cases were good precedents in terms of reasons for publication.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. 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;

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

The Committee finds that the Member engaged in professional misconduct. He abused his position as a teacher by having inappropriate communications with four students, one of which culminated in sexual contact. The Committee accepts the Joint Submission on Penalty (Exhibit 5) and finds that revocation is the appropriate penalty for misconduct of this nature.

The Committee considered the repercussions of publication with name on the Member’s new career path, yet determined that this did not outweigh the necessity for transparency to maintain the public trust. Publication of the findings and order of the Committee, along with the name of the Member, identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific and general deterrent and informs the profession that such conduct will not be tolerated.

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

Date: January 21, 2014

______________________________

Pauline Smart

Chair, Discipline Panel

______________________________ Stefanie Achkewich, OCT

Member, Discipline Panel

______________________________

Darlene Mead, OCT

Member, Discipline Panel