Ontario College of Teachers v. Lowe, 2014 ONOCT 60

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Lowe, 2014 ONOCT 60

Date: 2014-02-04

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 Timothy Lowe, OCT, a member of the Ontario College of Teachers.

PANEL: Monika Ferenczy, OCT, Chair Jean-Luc Bernard, OCT Ruth Ann Penny, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Martin Zatovkanuk, Counsel for the Ontario College of Teachers

– and –

TIMOTHY LOWE (CERTIFICATE #: 185525) Kelly Doctor, Sack Goldblatt Mitchell, for Timothy Lowe

Paul Marshall, Emond Harnden LLP, Independent Legal Counsel

Heard: December 17, 2013

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 17, 2013 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated May 3, 2013 was served on Timothy Lowe, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on May 23, 2013 to set a date for a hearing. The hearing was subsequently set for December 17, 2013.

Timothy Lowe was in attendance at this hearing.

ALLEGATIONS

The allegations against Timothy Lowe in the Notice of Hearing (Exhibit 1), dated May 3, 2013, are as follows:

IT IS ALLEGED that Timothy Lowe is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (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 committed acts or omissions 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

c) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that, subject to ratification by the Committee, agreement had been reached on the facts and introduced a Memorandum of Agreement (“MOA”) (Exhibit 2). This document includes the Agreed Statement of Facts and Joint Submission on Resolution. The MOA provides as follows:

1. On October 24, 2011, the Conseil scolaire catholique Franco-Nord (the “Board”) advised the Ontario College of Teachers, pursuant to subsection 43.2(1) of the Act, that the Board had imposed restrictions on the Member in carrying out his teaching duties at École secondaire catholique Algonquin (the “school”) because he had been convicted of a criminal offence.

2. Timothy Lowe is a member in good standing of the College.

3. On or about July 23, 2011, two criminal charges were brought against the Member, alleging specifically that he drove a motor vehicle while his ability to drive was impaired by alcohol and that he drove a motor vehicle after having consumed an amount of alcohol sufficient to raise his blood-alcohol level above 80 milligrams per 100 millilitres of blood.

4. On August 9, 2011, following a guilty plea by the Member, the court found the Member guilty of the second charge only, that is, that he had driven a motor vehicle after having consumed an amount of alcohol sufficient to raise his blood-alcohol level above 80 milligrams per 100 millilitres of blood. The court issued an order prohibiting the Member from driving a motor vehicle on the street, on a road, on a highway or in any other public place for a one-year period. In addition, the Member was required to pay a fine of $1,000.00 within 30 days of his court appearance of August 9, 2011.

5. Having pleaded guilty less than 90 days after his indictment, the Member was eligible for a program that allowed him to drive again three months after his conviction, provided that he install an ignition interlock device with breathalyser in his personal vehicle. This ignition interlock device with breathalyser remained in the Member’s vehicle until August 9, 2012, that is, until a year after his conviction.

6. In a letter dated October 20, 2011, the Board imposed restrictions on the Member in the performance of his duties. The Board stipulated that the Member was to avoid driving students in a motor vehicle and was to ensure that another adult authorized by the Principal was with him whenever he was driving students out of town. The Board’s letter of October 20, 2011 indicated that the restrictions were of an administrative rather than disciplinary nature and had the purpose of ensuring student safety. These restrictions remained in place until December 12, 2012.

GUILTY PLEA

The Member pleaded guilty at the hearing.

SUBMISSION OF COLLEGE COUNSEL

Counsel for the College submitted that the MOA states the facts as admitted by the Member and that the parties had reached agreement. He proposed that the Committee ratify the MOA, maintaining that guilt had already been established by another tribunal and that the facts submitted served as necessary evidence for a determination of professional misconduct under the Rules of Procedure of the Discipline Committee.

DECISION

Having examined the Exhibits filed, and based on the Memorandum of Agreement, the guilty plea and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the Memorandum of Agreement. The Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Timothy Lowe committed acts of professional misconduct as defined in subsection 30(2) of the Act, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth and accuracy of the facts in paragraphs 1 to 6 of the MOA. He acknowledged that these facts constitute evidence that he is guilty of professional misconduct and pleads no contest to the allegations against him. The Committee accepts that the MOA and the Member’s guilty plea support the allegations contained in the Notice of Hearing, and agrees that the Member’s actions constitute professional misconduct.

STATEMENTS OF THE PARTIES RE: PUBLICATION

College Counsel stated that, since the employer imposed restrictions which influenced not only the Member’s performance of his duties but also had an impact on some of the students in his school, his name should be published with the decision summary. Such publication would serve as a general deterrence to members of the teaching profession. Publishing a summary of the findings and the Order with the Member’s name would also provide a specific deterrent to the Member because he would be less likely to repeat this act.

Continuing his argument, Counsel for the College reminded the Committee that, according to the LeSage Report recommendations, the College should order publication of a member’s name in the majority of cases submitted to the College. He added that, with the passage of Bill 103, which flows from Judge LeSage’s recommendations, publication of a member’s name will be compulsory in all discipline cases in order to protect students.

Counsel for the Member indicated that the only point in dispute during this agreement hearing was whether the Member’s name would be published in the summary of this decision. She added that the Member agrees to publication of a summary of the Committee’s findings and order in Professionally Speaking, but requested that his name not be published. She maintained that the decision to publish a summary with the Member’s name rests with the Committee. In her view, the Act does not require that the Member’s name be published, and the decision to do so is entirely discretionary. She also indicated that the interests of the Member would be taken into consideration and that the publication of his name was not necessary as a deterrent to the profession -- because the consequences of drunk driving are already well known to the public.

She continued her statement, explaining that publication would be damaging to the Member because he has already incurred the costs of a fine, an ignition interlock device for his car and a rehabilitation course. In addition, at his appearance in 2011, the court prohibited him from driving a motor vehicle for three months, and the Board imposed a condition prohibiting him from driving students for several months. She added that he lives in the community of North Bay and that, in this small francophone community, publication would continue to underscore the painful events from the past which he and his family have lived through. She also stressed that it is especially embarrassing for the member as a sports trainer not to be able to carry out his duties – duties that include driving students to out-of-town sports competitions.

Counsel for the Member then added to her statement the following attenuating factors regarding non-publication of his name:

1. The Member made the effort to appear in person to receive his reprimand.
2. The Member’s name will appear on the public register of the College once a copy of the online decision is available to the public. In closing her argument, Counsel for the Member reminded the Committee that the incident occurred during the summer holidays and did not involve any students.

With respect to the case law presented at this hearing, Counsel for the Member submitted three decisions in her statement to support her argument vis-à-vis publication of a summary of this decision without the Member’s name. In her opinion, each of these cases served as a general and specific deterrent, with or without criminal conviction.

In her concluding statement, she told the Committee that the Member is an experienced teacher who is valued by his colleagues and the students at his school. He is dedicated and committed to the teaching profession. She also indicated that the Member is sorry; he regrets his actions and accepts the consequences of these actions.

To counter the arguments put forward by Counsel for the Member, Counsel for the College replied that the facts presented during this hearing supported the gravity of the case. As for the case law, he argued that two of the three instances presented as legal precedents were old cases and that their findings and orders were not applicable. He supported his argument by adding that the 2011 decision, which Counsel for the Member cited as a legal precedent at this hearing, was an example that supported the reasons behind the proposition in Bill 103 aimed at removing the Committee’s discretion to decide in discipline cases whether a member’s name would be published in the summary when the findings and orders of a case are published. He stated that the procedural trend of the future is towards publication of the name in disciplinary cases, and that this direction cannot be changed.

PENALTY AND ORDER

The Committee accepts the Joint Submission on Resolution (Exhibit 2) and makes the following order:

1. The Member shall appear before the Committee immediately after the hearing in order to receive a reprimand. This decision shall appear on the College’s public register. The reprimand will be given at 101 Bloor Street West in Toronto, Ontario.

2. Pursuant to subsection 30 (5) (3) of the Ontario College of Teachers Act, the findings and order of the Committee shall be published in summary on the College web site and in any other manner the Registrar deems appropriate, together with the Member’s name, and in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee accepted the Joint Submission on Resolution for the following reasons:

1. The Member has already completed the requirements with respect to the restrictions and consequences imposed by the court and the employer, and the College is imposing no further restrictions.

2. A notice will be added to the public register maintained by the Registrar of the College. This information will also appear on the Member’s Certificate of Qualification and Registration and on his statement of professional standing. The College shall publish a summary of the case and its resolution in its official publication, Professionally Speaking/Pour parler profession. The College shall also make the Decision and Reasons of the Discipline Committee available for review by the public in the College’s Margaret Wilson Library, on the College’s web site and in any other form the Registrar deems appropriate. A copy of the Decision and Reasons of the Discipline Committee may be submitted to QuickLaw or any other online legal database.

3. The Member shall appear after the hearing to receive a reprimand.

The Committee is of the opinion that the reprimand is an appropriate penalty for this case because it meets a number of disciplinary expectations and will be a specific deterrent to the Member and a general deterrent to the profession. Publication of this matter in the public domain will demonstrate the gravity of the situation to others in the profession and the fact that any such lack of judgment will not be tolerated by the profession. The reprimand can be considered as a specific deterrent to the Member since he must appear before his peers to be reminded of his responsibilities as a member of the teaching profession.

The fact that the two parties have managed to reach an agreement should indicate the achievement of a balance of interests appropriate to the conclusion of this matter.

Publication of the Member’s name is necessary and acts as a general and specific deterrence because such publication meets the College’s mandate for transparency and consistent information in the public domain. The Committee considers that the Member’s name was already made public at a criminal trial and through the College’s Notices of Hearing, and is exercising its discretion under subsection 30(5) of the Act, which deals with the Committee’s powers of publication. In addition, the Committee considers it important that the Member has been found guilty by another tribunal, a fact that makes publication of his name necessary because of his engagement in socially unacceptable behaviour. The Committee therefore finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Timothy Lowe is guilty of professional misconduct as defined in subsection 30(2) of the Act, and finds that his actions are disgraceful and dishonourable, that he failed to maintain the standards of the profession and engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) and 1(19). The Committee is satisfied that the penalty is proportional to the circumstances and serves the public interest.

February 4, 2014

______________________________ Monika Ferenczy, OCT Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT Member, Discipline Panel

______________________________ Ruth Ann Penny, OCT Member, Discipline Panel