DISCIPLINE COMMITTEE
OF THE ONTARIO COLLEGE OF TEACHERS
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 Kerry Stephen Powers, OCT, a member of the Ontario College of Teachers.
PANEL: Alexander (Sandy) Bass, OCT
Mel Greif
Monique Lapalme Arseneault
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Beverley Hodsdon,
) Law Clerk
-and- )
) Heather Alden,
) Ontario Secondary School Teachers’
KERRY STEPHEN POWERS ) Federation,
(CERTIFICATE # 479346) ) for Kerry Stephen Powers
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: June 9 & 10, 2014; November 25, 26 & 28, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter commenced on June 9, 2014 as a contested hearing before a panel of the Discipline Committee (the “Committee”) at the Ontario College of Teachers (the “College”) at Toronto.
On November 28, 2014, 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 45).
A Notice of Hearing, dated June 11, 2012, was served on Kerry Stephen Powers (the “Member”), requesting his presence on July 16, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence June 9, 2014.
The Member was in attendance throughout the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing (Exhibit 1) dated June 11, 2012 are as follows:
IT IS ALLEGED that Kerry Stephen Powers 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 abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he failed to supervise adequately a person who is under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);
(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 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).
AGREED STATEMENT OF FACTS
The Agreed Statement of Facts and Guilty Plea presented by the parties on November 28, 2014 (Exhibit 45), provides as follows:
At all material times, the Member, Kerry Powers was a member of the Ontario College of Teachers. Attached to Exhibit 45 at Tab A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was an employee of the Peel District School Board (the “Board”) and was a teacher at the [XXX] School (the “School”) in Brampton, Ontario.
In and around February 5 to February 7, 2009 during a school trip to [XXX] for a [XXX] Conference (the “Conference”), the Member was responsible for a group of approximately thirty four (34) students from the School who stayed at the [XXX] Hotel (the “Hotel”) in [XXX].
On the evening of Thursday, February 5 and into the morning of Friday, February 6, 2009, the Member:
(a) failed to provide adequate supervision for students at the Conference, as described in more detail below;
(b) despite being aware of the Board excursion policy requirement of a supervision ratio of one teacher to twenty students, the Member failed to notify the Board that he was the only teacher from the School in attendance during the first evening of the Conference (Thursday, February 5);
(c) On the Thursday evening, the Member allowed students free access to his hotel room to prepare their presentations and iron their clothing;
(d) On the Thursday evening, after 11 p.m., he left the Hotel. In doing so, the students from the School remained unsupervised by any teacher from the School. There was security at the Hotel. The Member was called and texted on several occasions by students who, among other things, required his assistance with presentation/s for the Conference. The Member returned to the Hotel several hours later.
- The Board conducted an investigation and by letter dated June 26, 2009, disciplined the Member by, among other things, imposing a suspension on him for five (5) days without pay and banning him from attending overnight excursions for the 2009/2010 school year.
GUILTY PLEA
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1-5 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts referred to in paragraph 1 to 5 above constitutes 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(11), 1(15), 1(18) 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 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.
- In light of the admitted facts and circumstances and the 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 Kerry Stephen Powers committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(11), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Committee accepts the Member’s admission of the truth of the facts and exhibits referred to above. The Member acknowledged that the Admitted Facts constitute conduct which is professional misconduct, and pleaded guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2) 1(11), 1(15), 1(18), and 1(19).
The Committee accepted the Member’s guilty plea and accepts that the facts contained in the Agreed Statement of Facts and Guilty Plea (Exhibit 45) amount to professional misconduct as pleaded to by the Member.
The Member demonstrated a significant failing by ignoring his Board’s policy about excursions and the ratio of supervision required. He failed to notify the Board that he was the only teacher in attendance, supervising approximately thirty four (34 students) during the first evening of a Conference held at the [XXX] Hotel in [XXX].
On the first evening, the Member allowed students free access to his hotel room to prepare their presentations and to iron their clothing. The Committee determined that this free access allowed by the Member to his hotel room was inappropriate.
Furthermore, on this same evening, the Member left the Hotel after 11:00 p.m. and in so doing left the students unsupervised by any teacher from the School. Students, requiring assistance, were unable to locate the Member as he did not respond to texts or phone calls. It wasn’t until several hours later that the Member returned to the Hotel.
Because of these combined behaviours, the Member ignored his professional responsibility of supervision of children in his care. Effectively, the children were left for many hours without any supervision.
The Committee noted that the Member was disciplined by his Board, suspended for five (5) days without pay, and banned from attending overnight excursions for the 2009/2010 school year.
JOINT SUBMISSION ON PENALTY
Counsel for the College and Counsel for the Member submitted a Joint Submission on Penalty (Exhibit 46) 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:
direct the Member to appear before the Committee immediately following the hearing of this matter to receive a 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”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of five (5) days, with such suspension having been served from July 6-10, 2009, and the fact of the suspension is to be recorded on the Register.
direct the Registrar to impose the following terms, conditions, or 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) 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 effective supervision and boundaries;
(b) within thirty (30) days of his completion of the course outlined in (a) 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 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
(ii) the Member has successfully completed the course.
- direct that there 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.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty and makes the following order as to penalty:
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”);
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 five (5) days, with such suspension having been served from July 6 to 10, 2009, and the fact of the suspension is to be recorded on the Register.
The Registrar is directed to impose the following terms, conditions, or 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) 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 effective supervision and boundaries;
(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:
(i) 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
(ii) the Member has successfully completed the course.
- The Committee directs that there be publication of the findings and orders 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 penalty proposed was appropriate given the circumstances of this case.
The requirement that the Member successfully complete a course on effective supervision and boundaries will address the conduct engaged in by the Member. The required course, if successfully completed, will serve as an element of rehabilitation, which will assist the Member in carrying out his future professional responsibilities.
The suspension acts as both a specific deterrent and a general deterrent as it will inform the Member and the teaching profession about the importance of professional conduct at all times.
A reprimand is required in this case. The reprimand will serve as a specific deterrent and will reinforce to the Member the significance of his behaviour. The fact of the reprimand will remain on the Member’s Certificate for a period of three (3) years and will thereby serve as a general deterrent to the profession.
Publication with name speaks to and contributes to the transparency of the discipline process. Publication of the findings and order of the Committee, in summary, with the name of the Member, in Professionally Speaking/Pour parler profession provides both a specific deterrent to the Member and a general deterrent to the profession while advising all and serving the public interest, and thereby maintains the public trust.
The Committee is satisfied that the penalty is appropriate in the circumstances, and serves and protects the public trust.
Date: November 28, 2014
Alexander (Sandy) Bass, OCT
Chair, Discipline Panel
______________________________ Mel Greif
Member, Discipline Panel
Monique Lapalme Arseneault
Member, Discipline Panel