DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
John Robert D. Gerwin, OCT, a member of the Ontario College of Teachers.
PANEL: Alexander (Sandy) Bass, OCT, Chair Robert Gagné Pauline Smart
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Bev Hodsdon, Law Clerk
- and -
JOHN ROBERT D. GERWIN (CERTIFICATE #264903) Jennifer Micallef, Ursel Phillips Fellows Hopkinson LLP, for John Robert D. Gerwin
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: May 30, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on before a panel of the Discipline Committee (the "Committee") on May 30, 2014 at the Ontario College of Teachers (the "College") at Toronto.
A Notice of Hearing dated July 30, 2012 was served on John Robert D. Gerwin (the "Member"), requesting his presence on August 9, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 30, 2014.
The Member was in attendance.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated July 30, 2012 (Exhibit 1) are as follows:
IT IS ALLEGED that John Robert D. Gerwin 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) 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;
(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 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).
Counsel for the College requested the withdrawal of allegation (c), namely subsection 1(7.3) of Ontario Regulation 437/97. The Committee granted this request, and the 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 2), which provides as follows:
John Robert D. Gerwin (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.
At all material times, the Member was employed by the Upper Grand District School Board (the "Board") as a teacher at [XXX] School (the "School") in Guelph, Ontario.
At all material times, the Student was a [XXX] year old female student of the School.
The Member was the Student's Grade [XXX] [XXX] teacher and the Member gave her [XXX]. The Member also helped the Student with [XXX].
During the 2009-2010 school year, when the Student was in Grade [XXX], the Member and the Student met often to talk about the Student's personal life situation at home. On one such occasion, the Member gave the Student a hug because the Student was upset.
In response to a direct request by the Student, the Member agreed to communicate with the Student by email over the summer months. Attached and marked as Exhibit "B" is an e-mail communication to the Member from the Student dated June 1, 2010.
In June 2010, one of the Member's colleagues at the School told the Member that she had noticed that the Student had been spending an unusual amount of time with him. She warned him to be careful about feelings that the Student might develop and about the perception that might be created.
During the summer of 2010, between the Student's Grade [XXX] and Grade [XXX] years, the Member continued to communicate with the Student via e-mail. The e-mail exchanges included the Student telling the Member if she had a bad day, and the Member telling the Student funny stories. The Student felt that it was like two friends talking. More than 50 messages were exchanged between the Member and the Student.
Also during the summer of 2010, the Member met the Student for coffee on two occasions. In addition, he met the Student for two other outings with him during the summer: a trip to a swimming pool with his daughter and a picnic with his daughter and a friend of the Student.
The Student's mother found out about the e-mail exchanges between the Member and the Student. The Student's mother thought it was inappropriate for a teacher to be exchanging e-mails with a student outside of school. She contacted the Member and told him she was uncomfortable with the Member being her daughter's friend and asked him not to contact or spend time with her daughter. The Member agreed not to have contact with the Student outside of school days and school hours.
In the fall of 2010, the Member was not the Student's teacher for any subject, although she was still a student at the School. Nevertheless, she continued to visit him at lunch, during free periods and after school. The Member and the Student frequently spent time together at the School after school hours.
In September/October 2010, the Member was alone with the Student outside the School on more than one occasion, in that he:
(a) took the Student home in his vehicle at the request of the Student;
(b) took the Student to several pharmacies to buy medicine for her mother at the request of the Student.
On one occasion, while alone in his classroom with the Student, the Member was getting something from his cabinet in the classroom. The Student came up behind him and put her hands in his front pants pockets and touched his legs. The Member pulled the Student's hands out of his pockets and said words to the effect of, "no, that is inappropriate".
On at least one occasion the Member kissed the Student on the cheek, after she had kissed him on the cheek.
The Member and the Student hugged goodbye on numerous occasions. The hugs between the Member and the Student would last approximately fifteen seconds.
In October 2010, the Student gave the Member a shoulder massage in the staffroom of the School.
In October 2010, while alone with the Member in his classroom, the Student undressed down to her underwear to change into a Halloween costume while the Member's back was turned. When the Member turned and saw what the Student was doing, he immediately turned his back and averted his gaze and directed her to stop. Immediately afterward, he admonished her that her actions were inappropriate in a classroom setting.
The Member accompanied the Student to get a piercing of her tongue, which was performed without her parents' knowledge or permission. If the member were to testify he would say that he did not know whether or not the student's parents had given permission for her to get the piercing.
In October 2010, at least three of the Member's colleagues informed the Member's Department Head that they had concerns about the amount of time the Member spent alone with the Student after school hours. The Department Head spoke to the Member about these concerns in October 2010.
The Member was suspended without pay by the Board for a period of two (2) working weeks from March 10, 2011 to March 30, 2011 inclusive. Attached and marked as Exhibit "C" is a letter from the Executive Officer of Human Resources of the Board with regards to same dated March 24, 2011.
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 20 above (the "Admitted Facts").
GUILTY PLEA
The Member hereby acknowledges that the Admitted Facts 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).
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.
- 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 John Robert D. Gerwin 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 conduct which 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 inappropriate relationship with one of his students, who was [XXX] years old at the time. During the 2009-2010 school year, when the Student was in Grade [XXX], the Member and the Student met often to talk about the Student's personal life situation at home. On one such occasion, the member gave the Student a hug. The Member began communicating with the Student by email over the summer months, with more than 50 messages being exchanged. The Member and the Student had 4 outings outside of the school during the summer months of 2010. This transpired despite the warnings from a colleague warning him to be careful about feelings that the Student might develop and about how his interactions with the Student might be perceived. The Member also totally disregarded the Student's mother's request that he not have any further contact with the Student outside of school activities. In the fall of 2010, even though the Student was not in any of his classes, the Member continued to spend time with her, both in school and outside of school hours. While the Member was alone in his classroom with the Student, the Student came up behind him and put her hands in his front pants pockets and touched his legs. On one occasion the Member kissed the Student on the cheek, hugged the Student on numerous occasions and allowed the Student to give him a shoulder massage in the staffroom.
On another occasion, while alone with the Member in his classroom, the Student dressed down to her underwear to change into a Halloween costume while the Member's back was turned. Although the Member admonished the Student about her inappropriate actions, he continued the relationship until October 2010 when at least three of the Member's colleagues reported to the Member's Department Head about their concerns that the Member spent a large amount of time alone with the Student after school hours. The Department Head spoke to the Member about these concerns and it was not until a week later that the Member ceased to have contact with the Student.
The Committee finds that the actions of the Member constitute 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).
JOINT SUBMISSION ON PENALTY
Counsel for the College and counsel for the Member 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:
(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"). The reprimand will be delivered in person at the offices of the College, 101 Bloor Street West, Toronto, Ontario;
(b) directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of six (6) months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;
(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, and limitations to be recorded on the Register until such time as they are fulfilled:
(i) within three (3) months of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries;
(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 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. Counsel submitted that publication with name acts as both a specific and general deterrent. Publishing the Member's name also provides protection of the public, which includes students. Publication ensures transparency of the discipline process and provides accountability to the profession and the public. Transparency and openness is expected by the public.
Submissions of Member's Counsel
Counsel for the Member submitted that the Member's name should not be published in Professionally Speaking/Pour parler profession. Counsel for the Member advised the Committee that the Member has already completed a boundaries course, after he was suspended by his Board. Counsel submitted that due to the nature of the allegations, publishing the Member's name may risk identifying and embarrassing the Student.
Counsel for the Member also stated that publication of the Member's name would have an adverse effect on his four children and his wife who was a teacher in the same Board.
Counsel also submitted that the penalty is significant and doesn't require the further burden of publication.
Reply Submissions of College Counsel
In response to the assertion of Member's counsel that the Student might be identified if the Member's name were to be published, College Counsel disagreed and stated that only the people who are already aware of the facts would be able to make that connection. Counsel stated that the public interest must always outweigh the potential impact to the Member or his family.
PENALTY DECISION
The Committee makes the following order as to penalty:
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 six (6) months, commencing on May 30, 2014, the date of the Order of the Discipline Committee. The fact of the suspension is to be recorded on the Register of the Ontario College of Teachers (the "Register").
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 Register.
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, and limitations to be recorded on the Register until such time as they are fulfilled:
(i) within three (3) months of May 30, 2014, the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries;
(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. the course provider 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.
- 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 accepts the Joint Submission on Penalty (Exhibit 3), having determined that the proposed penalty is proportional to the misconduct committed by the Member and appropriate in the circumstances.
The Member engaged in an inappropriate relationship with a Student over an extended period of time, despite warnings from his colleagues and a request from the Student's mother to discontinue this relationship. Even after the Student made inappropriate advances to the Member, he continued to meet with the Student both in the school and outside of the School. The Member was in a position of trust with respect to the Student. It is a teacher's duty to protect young persons, who may be physically mature, but who still lack the emotional or intellectual maturity to safeguard their own sexual integrity from being exploited by adults who have unique access and potential influence over them by virtue of being in a position of trust and authority. A teacher is a classic example of such a person. This was a serious breach of trust by the Member and requires a serious penalty.
A six month teaching suspension was accepted by the Committee as being appropriate given the nature of the misconduct. Both parties agreed to this term. A suspension of this duration is a reasonable penalty, given the nature of the misconduct and serves as both a specific and general deterrent.
The suspension signals to the profession, as a general deterrent, that appropriate boundaries need to be maintained at all times. The suspension recognizes the importance of conveying to members of the public that teachers are held to a very high standard in order to maintain the public trust.
In this case, a reprimand is required
The recording of this reprimand on the Member's certificate will function as a specific deterrent and as general deterrent to the profession.
Publication with name is necessary in this matter. The Member committed acts of professional misconduct, has admitted to responsibility, has accepted the penalty and therefore, needs to share both his behaviour and the consequences of such behaviour with his peers and his profession. The principle of general deterrence is respected through publication with name, which demonstrates that behaviour such as this will never be tolerated. It will result in serious penalties. Publication also guarantees that the public trust will be maintained through the demonstration of appropriate penalty and transparency of process. The Committee found no reason to believe that publishing the Member's name would identify the Student. The Committee did not agree that publication of the name would have an adverse effect on the Member's family. The need to publish the Member's name informs the public and outweighs any potential impact to the Member or his family.
The Committee is convinced that this decision is appropriate in the circumstances and will serve to protect the public interest.
Date: June 5, 2014
Alexander (Sandy) Bass, OCT Chair, Discipline Panel
Robert Gagné Member, Discipline Panel
Pauline Smart Member, Discipline Panel