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
Michael Howard Reist, a member of the Ontario College of Teachers.
PANEL: Robert Gagné Chair Irene Dembek, OCT
Louis Sloan, OCT
BETWEEN: ) Larissa Moscu,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
- and – )
MICHAEL HOWARD REIST ) Michael Howard Reist,
(CERTIFICATE #176529) ) on his own behalf
) Rebecca Durcan,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: June 10, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on before a panel of the Discipline Committee (the “Committee”) on June 10, 2014 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 13, 2013 (Exhibit 1) was served on Michael Howard Reist (the “Member”), requesting his presence on October 7, 2013 to set a date for a hearing and specifying the charges. The hearing was subsequently set for June 10, 2014.
The Member was in attendance and acted on his own behalf.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated September 13, 2013 (Exhibit 1) are as follows:
IT IS ALLEGED that Michael Howard Reist is guilty of professional misconduct as defined in subsection 30(2) 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) he 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);
(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 allegations (b) & (c), namely subsections 1(7.1) and 1(7.2) of Ontario Regulation 437/97. 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 2), which provides as follows:
Michael Howard Reist (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 Dufferin-Peel Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) and he also worked as a [XXX] in Caledon, Ontario.
At all material times, the Student was a [XXX] year old male student whom the Member [XXX]. The Student had an Individual Education Plan (“IEP”) at school due to [XXX] ([XXX]).
The parents of the Student learned about the Member through discussions with staff at the school attended by the Student. They contacted the Member and arrangements were made for weekly [XXX].
Between October 2011 and July 2012, the Member [XXX] the Student once per week. The [XXX] took place at the Member’s home and at the library of the School.
During the course of the [XXX], the Member touched the Student. The touching consisted of the Member massaging the Student’s foot and/or feet with his hands.
If called to testify, the Member would state that touching the Student’s foot and/or feet was part of his professional technique for [XXX] a student diagnosed with [XXX] and was intended to assist with sensory processing.
The Member touched the Student’s foot and/or feet without the consent of the Students’ parents. The Member also failed to provide the Students’ parents with information about this technique at the outset of the [XXX], or at all.
After the Student reported the touching to his parents, he was interviewed by the Ontario Provincial Police. During this interview, the Student stated that the Member’s touching came to make him feel weird. The Student stated that no other touching occurred. Attached and marked as Exhibit “B” are the police interview notes with the Student. Ultimately, no criminal charges were laid.
In the circumstances, it was inappropriate for the Member to touch the Student in this way.
PLEA OF NO CONTEST
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 10 above (the “Agreed Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 5 to 9 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), (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 Statement of 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 without the advice of legal counsel.
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.
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 the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Michael Howard Reist committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), (15), 1(18-unprofessional) and 1(19).
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 Committee finds that the Member’s conduct did not comply with the standards of the profession or the Education Act. The Member exercised poor judgment in failing to advise and obtain the permission of the Student’s parents before employing his sensory techniques with the student who had an [XXX] ([XXX]). After the Student reported the touching to his parents, he was interviewed by the Ontario Provincial Police. During this interview, the Student stated that the Member’s touching came to make him feel weird. As a result, the parents of the Student made a complaint to the College. By failing to inform and obtain the parents’ consent prior to employing his sensory techniques, the Member engaged in unprofessional conduct and engaged in conduct unbecoming a member.
JOINT SUBMISSION ON PENALTY
Counsel for the College and 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”).
(b) directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of one (1) month 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, or limitations to be recorded on the Register until such time as they are fulfilled:
(i) prior to commencing any position that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at his own expense, courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues;
(ii) prior to commencing any position that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at this own expense, a course of instruction pre-approved by the Registrar regarding special education and the instruction of students with special education issues;
(iii) within thirty (30) days of his completion of the courses outlined in (i) and (ii) above, the Member shall provide to the Registrar a written certificate from each of the course provider stating that:
A. he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest 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 provided.
(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.
PENALTY SUBMISSIONS RE: PUBLICATION
Submissions of College counsel
Counsel for the College requested that the findings in summary, with the name of the Member be published in Professional Speaking/Pour parler profession. 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 noted that the conduct occurred over a number of months, from October 2011 to July 2012. Counsel stated that there is no difference if a member’s conduct occurred as a teacher or as a [XXX] and does not change the fact that the conduct was unprofessional. It was the College’s position that publishing the Member’s name is in keeping with the openness of Discipline Committee proceedings.
Submissions of Member on his own behalf
Member submitted that his name not be published in the College’s publication Professionally Speaking/Pour parler profession. The Member indicated that he has learned much from this ordeal, that he has learned to be more cautious, to show better judgment and exercise better communication with parents. The Member stated that he has “worked in Ontario schools for over thirty (30) years”. During these years, he has received hundreds of cards and letters from students thanking him for his work and telling him what a positive influence he had been in their lives.
The Member stated that by withholding his name, transparency can still be achieved and contribute to teacher awareness about the facts of this case and the consequences that will ensue if parents are not informed about the use of therapeutic techniques that fall outside the standard practice of a teacher. The Member apologized to the Student for whatever stress or confusion he may have caused and to his parents if he did not inform them properly or he had offended their sensibilities in any way.
PENALTY DECISION
The Committee makes the following order as to penalty:
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 of the Ontario College of Teachers.
The Registrar of the Ontario College of Teachers is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one (1) month commencing on June 10, 2014, 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;
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:
(i) prior to commencing any position that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at his own expense, courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues;
(ii) prior to commencing any position that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at this own expense, a course of instruction pre-approved by the Registrar regarding special education and the instruction of students with special education issues;
(iii) within thirty (30) days of his completion of the courses outlined in (i) and (ii) above, the Member shall provide to the Registrar a written certificate from each of the course provider stating that:
A. the course provider has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest 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 provided.
- The findings and order of the Committee shall be published in summary form, without 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 sanction is appropriate in the circumstances and proportional to the misconduct committed by the Member. In this case, the suspension and reprimand act as specific deterrents. The recording of this suspension and reprimand on the Member’s certificate will function as a general deterrent to the profession.
Courses on appropriate boundaries and special education and the instruction of students with special education issues will address improving professional judgment and decision making for the Member to avoid such errors in judgment in the future.
The Committee determined that the Member’s misconduct was at the lower end of the spectrum in a lengthy career. There was no evidence of any inappropriate touching of the Student by the Member. The professional misconduct relates to the fact that the Member did not communicate clearly with the parents prior to employing the techniques with their child who had been diagnosed with [XXX].
Publication of the findings in summary form, without the name of the Member will be sufficient to meet the needs of specific and general deterrence. The profession and the public will be served by publication of the summary of the findings and the knowledge that this type of misconduct whether you are a teacher in a school setting or as a [XXX] in one’s own home, will have consequences.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: June 10, 2014 ______________________________
Robert Gagné
Chair, Discipline Panel
______________________________ Irene Dembek, OCT
Member, Discipline Panel
Louis Sloan, OCT
Member, Discipline Panel