Ontario College of Teachers v. Kernohan, 2014 ONOCT 53

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kernohan, 2014 ONOCT 53

Date: 2014-11-18

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 Ashley Marie Kernohan, a member of the Ontario College of Teachers.

PANEL: Irene Dembek, OCT, Chair Christine Bellini, OCT Pauline Smart

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk

– and –

ASHLEY MARIE KERNOHAN (CERTIFICATE #580149) Andrea Wobick, Ursel Phillips Fellows Hopkinson LLP, for Ashley Marie Kernohan

Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: November 18, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 18, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 23, 2013 was served on Ashley Marie Kernohan (the “Member”), requesting her presence on August 20, 2013 to set a date for a hearing. The hearing was subsequently set for November 18, 2014.

The Member was not in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated July 23, 2013 (Exhibit 1) are as follows:

IT IS ALLEGED that Ashley Marie Kernohan is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) she 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) she 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);

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

At the hearing on November 18, 2014, College counsel requested that the allegations of professional misconduct as defined in subsection 40(1.1) of the Act and paragraphs (b), (c) and (d) of the Notice of Hearing (Exhibit 1) be withdrawn. The Committee granted this request, and these allegations were subsequently withdrawn.

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. Ashley Marie Kernohan was at all material times, a member of the Ontario College of Teachers. Attached at Exhibit 3, Tab 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 as a teacher at [XXX] (the “School”) in [XXX], Ontario.

3. At all material times, the Student was a [XXX] year old male student at the School.

4. In early December 2011, the Student opened up to the Member about a “break-up” that he had during the summer of 2011 and felt very depressed about the situation. The Member befriended the Student and counselled him.

5. As time progressed, the Member and the Student exchanged cell phone numbers and began to exchange text messages and talk on the phone.

6. The Member and the Student would talk on the phone during the late hours of the evening at 11:00 p.m. or midnight.

7. The Member and the Student exchanged numerous text messages.

8. As the relationship progressed the Member gave the Student letters and cards. Furthermore, on Valentine’s Day 2012, the Member gave the Student a Valentine’s Day card. Attached at Exhibit 3, Tab B are copies of the letters and Valentine’s Day card.

9. The Member was terminated from her employment on or about May 11, 2012. Attached at Exhibit 3, Tab C is a letter from the Executive Director of [XXX] regarding same.

10. 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 9 above (the “Uncontested Facts”).

PLEA OF NO CONTEST

11. The Member hereby acknowledges that the Uncontested Facts referred to in the paragraphs above, constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18), and 1(19).

12. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Statement of Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) she 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 her name, may be published in the official publication of the College;

(e) she understands that any agreement between counsel for the College and herself with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

13. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

14. In light of the Uncontested Facts, circumstances and plea of no contest, 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 Ashley Marie Kernohan committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18), and 1(19).

REASONS FOR DECISION

The Member acknowledged that the Uncontested Facts in the Statement of Uncontested Facts, and Plea of No Contest (Exhibit 3) constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct. The Committee accepts the Member’s plea and the facts contained in the Statement of Uncontested Facts, and Plea of No Contest.

The Member acknowledged that she engaged in an inappropriate personal relationship with a depressed [XXX] year old male student, which included exchanging cell phone numbers, text messaging and talking on the phone during the late hours of the evening. The relationship progressed when the Member gave the student letters and cards, stating “I love you”. The matter was investigated by the School and the Member’s employment was subsequently terminated.

In light of the Member’s behaviour and her plea, the Committee finds that the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 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 4) 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. direct 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; and

2. direct 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 did not agree on whether or not the Member’s name should be included and submissions were made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that publication with name is warranted in this case as it addresses the four principles of sanction, being specific and general deterrence, transparency and accountability. Counsel stated that the Member befriended and counselled a young student, the relationship progressed in that the Member and student exchanged phone numbers and text messages. The Member also sent letters and cards which showed the familiarity that she communicated with the student. Counsel stated that this level of inappropriate misconduct is serious enough to warrant publication with name. Publication with name sends a strong message to members that inappropriate relationships with students will not be tolerated.

Counsel further stated that publication with name ensures transparency, openness and accountability and serves the public interest. Therefore, in order to meet these goals, publication with name is necessary.

Submissions of Member’s Counsel

Counsel for the Member pointed out that the Member received her Certificate of Qualification and Registration in 2010, allegations surfaced in 2011, and her employment was terminated in 2012. The Member’s career ended shortly after it started. Counsel stated “she has already paid they ultimate penalty” and therefore the principles of specific and general deterrence have been met.

The facts of this case are sufficient to adequately deter members of the profession and publication with name is not necessary. The public interest has been satisfied knowing that the Member will no longer be in the profession, and that she has signed an undertaking not to seek reinstatement of her certificate.

Rehabilitation has been met as the Member has accepted revocation of her certificate and willingly signed the undertaking and has pursued another career and is working elsewhere. Counsel stated that publication with name might set the Member back in the transition to her new employment.

In publishing the summary, the goals of openness and transparency are achieved and publication with name is not necessary.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Committee directs the Registrar to revoke the Certificate of Qualification and Registration of the Member; and

2. There shall be publication of the findings and Order of the Committee 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 determined that the Joint Submission on Penalty (Exhibit 4) 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 Committee finds that revocation, in these circumstances is an appropriate penalty. The Member was a recent graduate at a faculty of education and therefore made familiar with the standards of the profession. The Member’s decision to pursue and engage in a relationship with a depressed [XXX] year old male student is disgraceful, dishonourable and unprofessional. The Member’s letters and Valentine’s Day card to the student included such statements as “I love you”, “I love you so much and can’t wait to spend tonight with you,” “I am yours forever and always” and “I’m sorry I have to tutor and can’t spend the whole night with you…” This illustrates a complete disregard for the trust that parents place in the profession and warrants the most severe penalty, revocation.

The Committee determined that publication with the Member’s name in Professionally Speaking/Pour parler profession, is warranted in these circumstances. Publication of the findings and Order of the Committee, in summary, 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, in this case, acts as both a specific and general deterrent and informs the profession and the public that such conduct will not be tolerated and will result in the harshest penalty. Publication with name serves both the principles of transparency and accountability and ensures public trust in the profession.

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

Date: November 18, 2014

Irene Dembek, OCT Chair, Discipline Panel

Christine Bellini, OCT Member, Discipline Panel

Pauline Smart Member, Discipline Panel