Ontario College of Teachers v Neumann, 2014 ONOCT 74

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Neumann, 2014 ONOCT 74

Date: 2014-02-21

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

Uwe Dieter Neumann,OCT, a member of the Ontario College of Teachers.

PANEL: Irene Dembek, OCT, Chair Darlene Mead, OCT

Pauline Smart

BETWEEN: ) Shane D’Souza,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk

• and – )

UWE DIETER NEUMANN ) Andrea Wobick,

(CERTIFICATE #247666) ) Ursel Phillips Fellows

) Hopkinson LLP,

) for Uwe Dieter Neumann

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: February 21, 2014

DECISION, REASONS FOR DECISION AND ORDERS

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

A Notice of Hearing dated March 14, 2012 (Exhibit 1) was served on Uwe Dieter Neumann (the “Member”), requesting his presence on April 2, 2012 to set a date for a hearing and specifying the charges. The hearing was subsequently set for February 21, 2014.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated March 14, 2012 (Exhibit 1) are as follows:

IT IS ALLEGED that Uwe Dieter Neumann is guilty of professional misconduct and/or is incompetent as defined in subsections 30(2) and 30(3) of the Ontario College of Teachers Act, 1966 (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, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he failed to supervise adequately a student or students who were under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

(d) he failed to comply with the Act or the Education Act, Revised Statutes of Ontario, 1990, c.E2 and particularly, Section 264(1)(c) thereof or the regulations made under those Acts, contrary to Ontario Regulation 437/97, subsections 1(14) and (15);

(e) he performed 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

(f) he displayed a lack of knowledge, skill or judgement and/or a disregard for the welfare of students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s Certificate should be made subject to terms, conditions or limitations.

At the hearing on February 21, 2014, College Counsel sought to withdraw the allegation of professional misconduct in paragraph (b) in the Notice of Hearing, namely that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7). Counsel further sought to withdraw the allegation of incompetence, namely subsection 30(3) of the Act and paragraph (f) of the Notice of Hearing. The Committee agrees that these allegations shall be 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 2), which provides as follows:

1. At all material times, Uwe Dieter Neumann (the “Member”) was a member of the Ontario College of Teachers. Attached 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 an employee of the Bluewater District School Board (the “Board”) and was a technology teacher at the [XXX] School (the “School”) in [XXX], Ontario.

3. The Member failed to adequately supervise and maintain appropriate safety standards in the shop classroom.

4. On or about October 22, 2004, the Member failed to prevent students from using an electric grinder outside the rear exit door while the ground was wet.

5. On or about October 22, 2004, an Inspector for the Ministry of Labour, Occupational Health and Safety, attended the School to investigate an anonymous complaint regarding conditions in the shop classroom where the Member instructed.

6. On or about October 29, 2004, Principal Jean Stephenson wrote a letter to the Member advising him of the complaint to the Ministry of Labour, Occupational Health and Safety regarding safety conditions in his shop classroom.

7. On or about April 2, 2005, a student suffered a welder’s flash to his eyes while in the Member’s class.

8. In and around April and May, 2005, Ron Motz (“Mr. Motz”), the Health and Safety Officer for the Board, investigated the welding flash incident that occurred on April 2, 2005 in the Member’s classroom. His report concluded, and the Member does not contest, that the Member did not prevent three students from welding with insufficient equipment and in an area that did not adequately protect them from welding flash.

9. On or about December 22, 2006, Vice Principal Dennis Moore sent an email requesting a meeting with the Member to ensure that the Member was clear about his responsibility in addressing the health and safety issues in his shop classroom.

10. On or about April 17, 2007, a student suffered a welder’s flash to the eye while in the Member’s manufacturing technology class.

11. On or about April 23, 2007, the Member did not properly maintain a clear passage to fire exits or remove obstructions in his shop class.

12. On or about June 15, 2007, the Member permitted students to dismantle and move three pieces of heavy equipment (a band saw, a metal shaper and a lathe) from the shop classroom.

13. In or around June 2007, the Member had the lathe moved from the school to a private facility without explicit authorization from the School administration.

14. On or about June 25, 2007, the Board sent a letter of discipline to the Member, which is attached hereto and marked as Exhibit “B”. If the Member were to testify, he would dispute the allegations as outlined in the Board’s discipline letter to the extent not otherwise admitted or uncontested herein.

15. The Member was suspended for seven days without pay from June 14 to June 22, 2007, and has not taught in a shop classroom since then.

16. The Member has continued in his teaching career without interruption since that time.

PLEA OF NO CONTEST

17. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits as referred to in paragraphs 1-16 above (the “Uncontested Facts”).

18. The Member hereby acknowledges that the Uncontested Facts 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(11), 1(14), 1(15) and 1(18).

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 Uncontested Facts being presented to the Discipline Committee;

(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 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.

20. 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.

21. In light of the uncontested facts and circumstances, 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 Uwe Dieter Neumann committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15) and 1(18).

REASONS FOR DECISION

Through the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), the Member acknowledged that his behaviour constituted 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 outlined in the agreement tendered by the parties.

The Member, on numerous occasions, from 2004 through 2007, failed to adequately supervise and maintain appropriate safety standards in the shop classroom. In one instance in 2004, the Member failed to prevent students from using an electric grinder outside the shop while the ground was wet. Due to an anonymous complaint regarding conditions in the shop classroom, an Inspector for the Ministry of Labour, Occupational Health and Safety attended the School to investigate. In April and May, 2005 the Health and Safety Officer for the Board investigated an incident in which a student suffered a welder’s flash to his eyes while in the Member’s class. The Safety Officer’s report concluded that the Member did not prevent three students from welding with insufficient equipment and in an area that did not adequately protect them from welding flash.

In December 2006, an e-mail from the vice-principal indicates he requested a meeting with the Member to ensure that the Member was clear about his responsibility in addressing the health and safety issues in his shop classroom.

In April 2007, another student suffered a welder’s flash to the eye while in the Member’s manufacturing technology class. As well, in April 2007, the Member did not properly maintain a clear passage to fire exits or remove obstructions in his shop class.

In June 2007, the Member permitted students to dismantle and move three pieces of heavy equipment from the shop classroom. The Member also had a lathe removed from the school to a private facility without explicit authorization from the School administration. On June 25, 2007, the Board sent a letter of discipline to the Member and suspended him for seven days without pay. The Member has continued to teach without interruption since June 2007, but has not taught in a shop classroom.

The Committee finds that the facts set out in the Statement of Uncontested Facts constitute professional misconduct, which the Member did not contest. Based on these uncontested facts and the Member’s conduct, the Committee finds that Uwe Dieter Neumann committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(14), 1(15) and 1(18).

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:

1. 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 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”);

2. 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:

(a) prior to commencing any teaching position in the manufacturing-based technology area, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding manufacturing-based technology;

(b) enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding a classroom management with emphasis on supervision and classroom safety;

(c) within thirty (30) days of his completion of the courses outlined in (a) and (b) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Statement of Uncontested Facts, Plea of No Contest 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

(ii) the Member has successfully completed the course/s.

3. 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 RE: PUBLICATION

Submissions of College counsel

College Counsel submitted that publication with name was appropriate in this matter. Publication with name serves as a specific deterrent to the Member and as a general deterrent to members of the profession. Publication with name also ensures transparency in the disciplinary process. College counsel also stated that the Committee ought to publish the Member’s name if there is no compelling reason not to publish. It was the College’s position that publishing the Member’s name is in keeping with the openness of Discipline Committee proceedings, which is paramount.

Counsel for the College presented two similar-fact cases, in which the members’ names were published. Both cases focussed on the lack of supervision by the members in classroom settings. In both these cases, the members requested that their names not be published. However, the Discipline panels determined that publication with name was warranted due to repeated incidents of inappropriate conduct by these members. As well, in one of these cases, the Member was given multiple warnings about his inappropriate behaviour.

Submissions of Member’s Counsel

Counsel for the Member submitted that the discretion to publish the Member’s name lies within the purview of the Committee. 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 indicated that the penalty agreed upon, along with the notation on the Member’s certificate of terms, conditions and limitations, is sufficient to serve as a specific deterrent to the Member. She submitted that the penalty on its own sends a message to the profession and the public that the College takes matters of student safety seriously and serves as a general deterrent. Counsel encouraged the Committee to consider the amount of time that has transpired since the allegations were made and the fact that the Member has continued to teach without interruption with the same Board for the past seven years. Counsel also stated that publication of the Member’s name might pose a risk to his teaching career.

Counsel for the Member commented on the cases submitted by College Counsel. She argued that time is an important factor in determining if publication with name is appropriate. In both of the cases presented by College Counsel, the timing between the incidents and the hearing dates was of a shorter gap than the case at hand. Therefore, Member’s Counsel submitted that publication with name is not warranted in this case as a decade has elapsed since the first allegations occurred.

Counsel for the Member presented the Committee with three cases of the Discipline Committee where publication with name was not ordered. In all cases, Counsel noted that a considerable passage of time had elapsed between the time the misconduct occurred and the date of the hearing. This gap in time was cited as one of the reasons for not publishing name in these cases.

Reply Submissions of College Counsel

Counsel for the College replied to submissions of Member’s Counsel. College Counsel pointed out that there was no evidence before the panel to explain the reasons for the passage of time between the allegations and the date of the hearing. Counsel also noted that the passage of time, on its own, is not a compelling enough reason to trump the openness and transparency of the proceedings. Counsel also pointed out that there was no evidence before the Committee that publication of the Member’s name would pose a risk to his teaching career. College Counsel noted that the cases provided by Member’s Counsel made specific reference to the misconduct being of a minor nature and at the low end of the spectrum and each case involved only one incident. College Counsel pointed out that this case involves repeated misconduct over a four year period.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. 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”);

2. 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:

(a) prior to commencing any teaching position in the manufacturing-based technology area, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding manufacturing-based technology;

(b) enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management with emphasis on supervision and classroom safety;

(c) within thirty (30) days of his completion of the courses outlined in (a) and (b) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty documents made as exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course/s.

3. 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 determined that the Member engaged in repeated inappropriate misconduct over several years. He failed to adequately supervise and maintain appropriate safety standards in the shop classroom. This blatant disregard by the Member for the health and safety of his students resulted in students being seriously injured over this four year period.

The Committee ordered that, prior to commencing any teaching position in the manufacturing-based technology area, the Member must successfully complete a course of instruction regarding manufacturing-based technology and a course in classroom management with emphasis on supervision and classroom safety. This course work will reinforce to the Member the importance of maintaining a safe learning environment for all, especially the students in the Member’s care. These terms, conditions and limitations will appear on the Member’s certificate until successful completion and act as a specific deterrent to the member and a general deterrent to the profession.

The reprimand by his peers and on behalf of the profession acts as a specific deterrent to the Member. The fact of the reprimand will remain on the Member’s certificate for a period of three years and will serve as a general deterrent to the profession.

The Committee determined that publication with the Member’s name is necessary due to the serious nature of the misconduct which compromised student safety. The fact that this misconduct was repeated over a prolonged period of time and continued despite multiple, concerted efforts to address the severe health and safety issues in the Member’s shop classroom was a compelling reason for the Committee to publish with name.

The Committee determined that, given the serious nature of the misconduct, arguments for non-publication due to the passage of time and possible risk to the Member’s teaching career were not sufficiently compelling to outweigh the need for openness and transparency of the discipline process.

Publication with name will serve as a specific deterrent to this Member and as a general deterrent to the members of the teaching profession as a whole. Such publication will demonstrate to the public that the College takes the issue of student safety seriously and that misconduct, such as that engaged in by the Member, will not be tolerated.

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

Date: February 21, 2014

Irene Dembek, OCT

Chair, Discipline Panel

______________________________ Darlene Mead, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel