Ontario College of Teachers v. Takashima, 2014 ONOCT 99

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Takashima, 2014 ONOCT 99

Date: 2014-05-14

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

Terence Kazuo Takashima, a member of the Ontario College of Teachers.

PANEL: Christine Bellini, OCT, Chair Stefanie Achkewich, OCT

Mel Greif

BETWEEN: ) David Leonard

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

• and - )

TERENCE KAZUO TAKASHIMA ) Selwyn Baboolal,

(CERTIFICATE #170055) ) Oumarally, Baboolal Lawyers

) for Terence Kazuo Takashima

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel )

) Heard: April 29 & 30, 2014

DECISION ON FINDING AND REASONS FOR DECISION

This matter began before a panel of the Discipline Committee (the “Committee”) on April 29, 2014, at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated April 3, 2013 was served on Terence Kazuo Takashima, requesting his presence on May 6, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for April 29, 2014.

Terence Kazuo Takashima (the “Member”) was in attendance for every hearing date listed above.

THE ALLEGATIONS

The allegations against Terence Kazuo Takashima in the Notice of Hearing, (Exhibit 1) dated April 3, 2013 are as follow:

IT IS ALLEGED that Terence Kazuo Takashima is guilty of professional misconduct as defined in subsection s 30(2) and 40(1.1) 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he 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;

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Terence Kazuo Takashima (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an occasional teacher.

3. At all material times, the Member was a volunteer [XXX] coach at [XXX] (the “School”).

4. The Student was a member of the School’s [XXX] team.

5. On or about December 7, 2010, the Member:

(a) had a sexual relationship with the Student which included, but was not limited to:

(i) oral sex;

(ii) hugging;

(b) had an inappropriate personal relationship with the Student in that he:

(i) asked the Student to change his surname to the Member’s surname;

(ii) asked the Student to name his first child after the Member in order to inherit the Member’s estate.

6. The Member’s employment was terminated by the Board on or about February 21, 2012.

MEMBER’S PLEA

The Member’s denied the allegations set out in the Notice of Hearing.

OVERVIEW

Terence Kazuo Takashima is a member of the Ontario College of Teachers. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an occasional teacher and was a volunteer [XXX] coach at [XXX] (the “School”). It is alleged that the Member was involved in a sexual relationship and an inappropriate personal relationship with the Student of the School’s [XXX] team.

The specific issue for the Committee to consider is whether or not the Member engaged in a sexual relationship and/or an inappropriate personal relationship with a male student.

THE EVIDENCE

Evidence of the College

The Committee heard and received evidence in the form of witness testimony and tendered exhibits.

The Witnesses:

The College called two witnesses: Saththiyeswaran “Sati” Shanmugam and Dolores Douglas. Saththiyeswaran “Sati” Shanmugam, a caretaker, testified regarding an alleged incident between the Member and the Student. Dolores Douglas, who is an Attendance Secretary, gave evidence regarding her knowledge of the alleged incident and her subsequent observations of the alleged participants.

A potential witness on behalf of the College was a grade [XXX] male student (the “Student”). This witness had to be subpoenaed by the College. Ultimately, the Student appeared as a witness on behalf of the Member. He did not give testimony as a College witness.

Testimony of Caretaker, Saththiyeswaran “Sati” Shanmugam (Mr. Shanmugam)

During examination in chief, Mr. Shanmugam testified that he was employed by the Board as a part-time caretaker since 2005. Shortly before the alleged incident, Mr. Shanmugam was appointed as a full-time caretaker to the School, as such, he was reasonably familiar with the School, having worked there in the past. On December 7, 2010, Mr. Shanmugam was scheduled to work the afternoon shift at the School. At approximately 5:50 p.m., Mr. Shanmugam was on his way to take garbage to the dumpster and decided to take a washroom break. The closest washroom was located in the staff lunch room. Mr. Shanmugam noticed the door was locked and used his own key to unlock it. He testified that normally the door was not locked. Mr. Shanmugam was assisted in his recollection of the staff room through four photographs of its layout (Exhibit 2, Photographs 1, 2, 3 and 4).

Upon entering the staff room, he noticed two people sitting at the first computer next to the printer. He proceeded to the gentlemen’s washroom. This washroom was divided into two compartments, an outer waiting room and inner washroom. Mr. Shanmugam stated that the outer door was always propped open, and the second door to the washroom was normally closed. Mr. Shanmugam testified that while in the washroom he heard “moaning sounds.” He proceeded to wash his hands and upon turning off the taps noticed the “moaning sounds” still going on.

Mr. Shanmugam walked into the staff room and observed one of the persons leaning back in his chair with his left leg up on the table. The other person was between the legs of the first, on his knees and was bent towards the first person. According to the testimony of Mr. Shanmugam the head of that person was “on his thigh” of the other. Mr. Shanmugam also stated that the one person, who was identified as the Member, had his hand on the shoulder of the other person who was identified as the Student.

At this point Mr. Shanmugam shouted “What is going on? Stop it.” Mr. Shanmugam said “I thought they were having oral sex…” He continued by saying “They did not stop, they kept at it.” Mr. Shanmugam went out into the hallway to look for his shift supervisor or other witnesses. As he was not able to find anyone, he returned to the staff room and pretended to make tea by filling up the kettle at the sink. Mr. Shanmugam yelled again “Stop” and noted that the Member and the Student remained in the same position and the behaviour continued.

Mr. Shanmugam, as a caretaker and a responsible person at the school, stated that he wanted to protect the Student. He further testified that the Student eventually stood up, pulled out his shirt and used it to wipe his face and mouth. Mr. Shanmugam testified that “No one said anything to me.” The Member, Mr. Takashima, stood up and pulled his zipper up.

At this point, the school attendance secretary, Dolores Douglas walked into the staff room. Mr. Shanmugam asked to speak to Ms. Douglas outside the door. Mr. Shanmugam stated that he told her “a teacher is having oral sex with a kid,” to which she replied “I cannot believe it.” Together, Mr. Shanmugam and Ms. Douglas went back into the staff room. Mr. Shanmugam stated that he observed that the Student’s face was red and he appeared to have “tears in his eyes.” Mr. Shanmugam stated that the Member never turned to look at him and Ms. Douglas, but proceeded to exit the room with the Student. Mr. Shanmugam informed his shift leader, Mike Hughes about the incident, who then contacted the school principal.

The next morning Mr. Shanmugam was asked to review video tape footage. The footage revealed the Student and Member entering the staff room. Mr. Shanmugam verified that these were the same two persons he encountered in the staff room.

During cross-examination, Mr. Shanmugam testified that he was reminded by the principal that he had worked at Beverly Heights School, during the same time as the Member. However, Mr. Shanmugam stated that he had not interacted with the Member in the past.

Mr. Shanmugam was asked about his eye sight and if he wore glasses, and he responded that he does not need to wear glasses. When questioned by the Defence Counsel if Mr. Shanmugam assumed the student was kneeling; he responded he saw a knee on the ground underneath the chairs.

In cross-examination and in reply, when asked if he ever saw a penis or any other genitalia, Mr. Shanmugam stated clearly that he never saw a penis or any “private parts.” He continued that he “never saw a penis in a mouth,” nor did he see any movement but that the Student’s head was close to the Member’s thigh. In response to the suggestion “you assumed that oral sex was going on,” Mr. Shanmugam responded with an affirmative “Yes” and added that it did not look like a [XXX] session.

Testimony of Attendance Secretary, Dolores Douglas “Ms. Douglas”

In examination in chief, Ms. Douglas testified that she was employed by the Board as an attendance secretary and had been at the School on three separate occasions. Her last assignment was from September to December 2010. Ms. Douglas stated that she knew the Member as a coach of the [XXX] team since, as part of his duties and one of her responsibilities, he would supply her with lists of the team members.

On the day of the incident, Ms. Douglas went to the staff room between 5:30 p.m. and 6:00 p.m. in order to pick up her coat and her lunch bag. On entering the room Ms. Douglas saw the caretaker Mr. Shanmugam standing by the sink, and the Member and the Student sitting close together by the computer. She stated “Sati” (Mr. Shanmugam) whispered can I talk to you outside? He said you won’t believe what I saw.” Ms. Douglas testified that she was told that the teacher was lying on his back while the student was performing oral sex and he thought they were watching pornography. She noted that Mr. Shanmugam looked very upset. She further questioned him as to why he did nothing to try to make a noise or interrupt them. Mr. Shanmugam replied that he yelled the word “Stop” but they did not. According to Ms. Douglas, Mr. Shanmugam stated that “the teacher kept telling the student not to stop.” Ms. Douglas continued that while Mr. Shanmugam conferenced with another caretaker on duty in the hallway, the Member and the Student walked out of the staff room. At some point while Ms. Douglas was in the staff room she was able to see the Student’s face and, according to her, the Student was “teary eyed.”

Ms. Douglas was called to the principal’s office the following morning. She was asked to verify that it was the Member and the Student entering the staff room, on the security footage.

Under cross examination, Ms. Douglas was asked to review the layout of the room. She also said that she did not actually see the alleged sex act but could only recount what the caretaker had told her. Ms. Douglas also added that the computer had a blue screen and did not show any images.

Evidence of the Defence

The Defence presented its case to the Committee through evidence presented in the form of witness testimony and tendered exhibits.

The Witnesses:

The Student was called by the Defence Counsel and testified about alleged incident. The Member testified before the Committee on his own behalf.

Testimony of a Student

In examination in chief, the Student testified that he was [XXX] -years-old at the time of the incident. The student is now [XXX] -years-old and is attending a [XXX]. The Student testified that he was a [XXX] of the school [XXX] team, coached by the Member. He stated that the Member was a good coach and was seen as a father figure by the team.

When the Student was asked about the incident that occurred on December 7, 2010, the student replied “Nothing happened.” The Student stated that he and the Member entered the staff room and that there was one staff member present who eventually left. The Member and the Student were in the staff room to send a [XXX] to the host school for an upcoming meet scheduled for the next day. The Student recounted that while the Member and the student were sitting together at the computer, the caretaker walked in. The computer was on. The Student volunteered, without being asked, that he gave the Member a hug and that it was normal team behaviour. At this point the caretaker entered the room and the Student stated that it was “an awkward situation.” He added voluntarily, without being questioned, that he and the Member joked about Member adopting him and becoming “heir to his throne,” thereby implying an inheritance. The Student claimed that it was a “joke.”

When questioned by the Defence Counsel, if there was a sexual relationship between him and the Member, the Student replied “No.” There was a further question about whether the Student and the Member watched pornography, the Student replied “No.”

In response to a question regarding whether or not the Student wears glasses, he responded “I never take them off.” When asked if he was crying, the Student also responded “No.”

The Student was further questioned whether or not he was kneeling in front of the Member. He responded “No, yes, to give him a hug.” He further stated that hugs were a “team thing.” The Student concluded by stating that he had been truthful, both with the police and here today with the panel.

During cross-examination, College Counsel asked the Student how long he had known the Member, to which he responded “three years.” He was further asked the following questions: Were you close to the Member? Are you loyal to the Member? Do you want to support the Member? The Student replied “Yes” to all of them.

The Student described on the day of the incident that while in the staff room, the Member logged into an email account. In order to send an email, he and the Member were sitting close while choosing the [XXX] for individual members on the [XXX] team.

The Student was asked if there were any sounds coming from either the computer or any source in the room, to which he replied “No.” He stated that when he left school that night, he did not think that anything was wrong.

The Student testified that the following day, he was approached by the principal, an investigator from the Board, and the police. When asked if he was unhappy about this, the Student responded “Yup. This is a complete waste of time.” He was further confronted by College Counsel for not responding to phone calls and emails, and having to be subpoenaed in order to attend the hearing.

In order to refresh his memory, the Student was given a summary of his interview conducted by the Board’s investigator. When questioned if the document was accurate, the Student responded “Yes.” Further questioning revealed inconsistencies in the Student’s recollection of the incident, specifically with regard to the number of hugs and whether he was kneeling on the ground. When asked to clarify to the panel what actually occurred, the Student replied “I don’t remember.”

College Counsel, by his cross-examination, took the Student through a discrepancy in his testimony vis-à-vis the Student’s comments about the inheritance. The Student replied that he told the investigator that it was a joke. However, College Counsel pointed out that the Student originally told the investigator that he thought it was “weird” and that it made him feel uncomfortable.

Testimony of Member, Terence Kazuo Takashima (the “Member”)

During examination in chief, the Member testified that he is currently 57-years-old, is a retired elementary teacher, and was a supply teacher at the time of the incident. The Member stated that he was a volunteer [XXX] coach at the School from 1988 to 2010.

The Member appeared to have limited recollection of the incident under review. When asked about how he gained access to the staff room, the Member replied that he could not remember. When he was asked if he saw anyone else in the staff room, he replied he did not remember. When he was asked if he specifically saw the caretaker entering the staff room, he replied that he did not recall hearing or seeing Mr. Shanmugam.

The Member testified that he sat at the computer with the Student and together they emailed a list of [XXX] to the host school. He further added that they were looking at a website called actionsports.ca to purchase [XXX] for the team. When asked to provide details about the incident, the Member replied that he was never aware that Mr. Shanmugam and Ms. Dolores were in the room. However, he did recall the following: he did hug the Student as a reward for changing his [XXX]; that he always made jokes about “inheritance” making the Student his “son” and the Student receiving an “inheritance.” The Member adamantly stated that he did not remember “a second hug” and further testified that: there was no other physical contact with the Student, no sexual contact, no oral sex – it never happened. The Student was kneeling to hug the Member but his head was never in his lap. The Member did attest that [XXX] were always hugging each other and they hugged him too.

The Member testified that his comment regarding his estate was meant as a joke and never expected it to happen.

During cross examination, the Member stated that he had been active at the School for twenty-two years as a coach. As a result of the incident, he stated, his position as a supply teacher was terminated. In his testimony, the Member stated that even though, as far as he was concerned, there was no reason for Mr. Shanmugam to make such “false allegations,” the Member was suspended immediately by the Board. He did not attend any meetings before he was suspended. According to the Member, the allegations were investigated. The Member further stated that he did not know what the allegations were until after he received communication from the College. The Member stated he was at the hearing because he wanted an opportunity to clear his name and had nothing to hide. The Member maintained his position that nothing happened on December 7, 2010.

According to the Member, his teacher federation (ETFO) was not able to represent him during interviews with the Board because the incident occurred outside of the classroom. The Member attended a meeting on March 29, 2011, with his school board and federation. He wanted to bring a lawyer to the meeting, but according to the Member, he was refused this right. College Counsel reviewed the summary of the Member’s meeting with the Board’s investigator that took place on March 29, 2011. When the investigator asked with whom the Member was viewing the computer, the Member said he did not want to answer and that he did not know why he did not want to answer. The Member was asked a second time to give the name of the Student and responded “I’m not sure I want to answer.” College Counsel asked the Member if he could explain why he would not answer the investigator at that time. The Member stated that he was unaware of what the allegations were against him and he did not want to involve any of the members of the [XXX] team. College Counsel continued to read the summary at the point where the investigator asked if the Student got out of his chair. The summary stated that the Member asked to take a break, spoke to his union representative and ended the interview. College Counsel noted that the Member cancelled the subsequent meeting scheduled for April 7, 2011, and was only prepared to attend future meetings on his own terms. The Member reiterated that his concern was for his [XXX] and he did not want to bring them into investigation. College Counsel stated the Member was terminated on February 21, 2012, and asked the Member if he grieved this action against him. The Member was also questioned if he was aware of the allegations against him. The Member responded he did not grieve his termination, and he was unsure when he was made aware of the allegations against him.

In closing his cross examination, College Counsel asked the Member to explain if the [XXX] team had a [XXX]. The Member replied that the Student was a [XXX]. College Counsel then read the investigator’s summary in which the Member stated that there is no designated [XXX] and said “I do not have one.” College Counsel asked the Member to confirm if this was different from what he told the Committee today and the Member replied “Yes.”

In reply, the Member’s Counsel attempted to expand on a number of issues. The Member was asked if he or his counsel responded to a letter from the Board, dated February 21, 2012 (Exhibit 3). His response was that he did not remember. The Member was then provided a copy of a letter dated March 2, 2012, from his Counsel to the Board (Exhibit 4). In this letter, Member’s counsel characterized the allegations and their particulars as “wholly inaccurate and false.”

Defence Counsel asked the Member why he did not co-operate with the Board’s investigator. The Member replied that he was not comfortable without a lawyer and that he did not like the investigator’s line of questions. He also did not want to make his [XXX] uncomfortable.

Submissions of the College’S COUNSEL

Counsel for the College opened his closing submissions with the premise that this hearing is being decided as a civil matter and not a criminal matter, therefore there are number of guiding principles that the Committee needed to consider. The matter has to be decided on the balance of probabilities. The Committee has to consider if the evidence was clear, convincing and cogent. The Committee has to determine the issue of credibility and ask the question “How do the witnesses persuade you?” The other important question was whether “the facts amount to a breach of professional misconduct?”

College Counsel stated that there were four witnesses, but three were crucial. The attendance secretary was only imperative in determining the emotions of the caretaker and the Student, both which she witnessed first-hand. College Counsel stated that if the Committee accepts the caretaker’s testimony about the conduct in the staff room, the wiping of the mouth and the zipping up of the pants, then the Committee can make a finding of professional misconduct based on the inference that a sexual act occurred. If the evidence is not sufficient to verify the conduct under review, then there was no misconduct. The Committee must evaluate and weigh the statements of the witnesses and make a decision if a sexual act occurred.

All of the witnesses agree that the alleged incident took place on December 7, 2010, at approximately 6:00 p.m. and that the Member and the Student were in the staff room, sitting side by side looking at one computer. Mr. Shanmugam and the Student agree that Mr. Shanmugam came into the staff room to use the washroom and that they saw each other. Mr. Shanmugam, Ms. Douglas and the Student, all agree that Mr. Shanmugam was troubled by the behaviour by the computer and the moment was awkward. Both Mr. Shanmugam and the Student state that the Student was down on his knee at one point. Mr. Shanmugam assumed that something sexual was occurring, however, the Member and the Student stated they only hugged. The Member, the Student and Mr. Shanmugam all agree that nothing on the computer would generate moaning. Mr. Shanmugam and Ms. Douglas both agree that the Student looked “teary eyed.”

College Counsel stated that the Committee should accept Mr. Shanmugam’s testimony for the following reasons: this was Mr. Shanmugam’s second day on the job; there was no animosity between Mr. Shanmugam and the Member; Ms. Douglas verified that Mr. Shanmugam was visibly upset by what he saw; there was no exaggeration in Mr. Shanmugam’s testimony; and he stuck to his evidence. College Counsel concluded his comments about Mr. Shanmugam by saying that the caretaker did his best to assist; his testimony was good and most important he kept it simple and credible.

College Counsel submitted that the Committee needs to be very careful when considering the Student’s testimony. The Student stated on numerous occasions and to numerous persons, that he was uncomfortable discussing the incident. The Student did not want the information to get out. He did not want to co-operate with the Board or the College.

According to College Counsel, the Student conceded that he was off the chair and on one knee in order to give the Member a hug. In his testimony, the Student only focused on the name change, inheritance and the joke surrounding this, and was prepared only to accept that it was “weird.” College Counsel pointed out numerous inconsistencies in the Student’s story and suggested that the Student would do almost anything to minimize the allegations as they would be embarrassing if they came out. College Counsel questioned why the Student refused to participate in the hearing and had to be subpoenaed.

College Counsel reviewed the credibility of the evidence of the Member. He noted the Member either did not remember, denied what happened, or refused to speak about the incident. The Member maintained that he did not remember seeing Mr. Shanmugam or Ms. Douglas. Most significantly, the Member’s demeanour and reaction is not consistent with that of a person who maintains that nothing happened. The Member provided conflicting testimony about the Student’s role on the [XXX] team. The Member would not identify the Student or any students on his [XXX] team even after four months after the incident. This refusal to provide the names of students was even more extraordinary given that the names of the [XXX] were on file. Second, the Member would not give the name of the Student even though there was security video tape showing the Student and the Member together. Further, the Member terminated his interview with the Board’s investigator when asked if the Student got off the chair. College Counsel stated that the Member’s behaviour was consistent with someone who had something to hide.

Submissions of the Member’s Counsel

Counsel for the Member opened his closing submissions with a reminder to the Committee that it was important to remember that the Member had a right to remain silent in the face of questions from the Board and that the Committee cannot draw an adverse inference from this decision. The Member’s silence was to protect his team. According to Member’s Counsel, the Member was unable to bring legal counsel to meetings. The point about the Student being a [XXX] or not is a minimal issue and has no bearing. Most important, the Committee was advised to decide on the evidence and not to speculate. The evidence is that nothing happened. The Member met with the police. He is attending this hearing. The onus of proof is on the College, but most important the burden of proof has not been met. This is a credibility case and a great care must be taken in declaring the Member guilty of professional misconduct.

Member’s Counsel stated there were serious inconsistencies of the evidence given by Mr. Shanmugam. Moaning sounds were heard but in cross-examination, Mr. Shanmugam said that he did not know the real source of these sounds. He assumed that the Member and the Student were having oral sex, but Mr. Shanmugam said that he never saw “a penis in a mouth.” Member’s Counsel noted that this was Mr. Shanmugam’s second day at school and he was not familiar with the culture at the school, he witnessed a hug and took it completely out of the context.

Defence Counsel stated that Ms. Douglas’ statements did not corroborate with the statements of Mr. Shanmugam. Defence Counsel denied that the Member was stretched out on the chair with the leg up on the table. Neither version has a sufficiency of evidence to establish this fact as absolute truth.

Defence Counsel stressed that the Student was honest, credible and forthright. There was no sexual relationship between the Student and the Member. In fact, the Student saw the Member as a father figure and was never threatened by him. The Student spoke to the Board’s investigator and the police. At the hearing, the Student stated that “this is a big waste of time.” The Student confirmed that at no point was he crying, he was wearing glasses at all times and the inheritance reference was a joke. The Committee accepted the testimony of Mr. Shanmugam and Ms. Douglas that the Student appeared “teary eyed.”

INDEPENDENT LEGAL COUNSEL (ILC)

In giving advice to the Committee, ILC stated that the Notice of Hearing must be a guide for deliberation and most important the College must prove its case on a balance of probabilities, and that the evidence must be clear, convincing and cogent. This case is grounded in credibility and the Committee must assess each witness on the basis of their credibility. The factors for establishing credibility include: the ability to witness and observe; ability to recall; motivation that might cloud memory; plausibility of evidence; evidence that is internally consistent; and any reliable external evidence that is either consistent or inconsistent. The Committee can use logic, experience and common sense.

In response to the comment by defence counsel regarding the “right to remain silent”, ILC advised that this is not accurate. Since the matter is a civil one, it is not informed by the criminal justice system and therefore an adverse inference can be made when a person chooses to be silent in certain circumstances. However, this should only be applied when certain factors are present.

DECISION

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof, with which the Committee is familiar, as set out in F.H. v. McDougall, 2008 SCC 53 (the “McDougall decision”). The standard of proof applied by the Committee, in accordance with the McDougall decision, is a balance of probabilities. As in all cases, the Committee looked for clear, cogent and convincing evidence.

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 Terence Kazuo Takashima committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18), and 1(19). Further, the Committee finds that the Member engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

Credibility

The Committee was guided in its assessment of testimony and evidence in this matter by generally accepted legal principals about the nature of credibility.

The burden of proof of the allegations lies with the College. The standard of proof in College hearings is one that is used in civil cases and that is accepted to be the balance of probabilities. The balance of probabilities standard is whether it is more likely than not that the events occurred. It is also acknowledged that the evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. The Committee’s task was to determine if the College has satisfied the burden with clear, cogent and convincing evidence.

In fulfilling its task the Committee applied guidance from the courts in determining the credibility of witnesses. The Committee took into account the integrity and intelligence of the witness, the candidness of the witness, and the lack of evasion, degree of frankness and responsiveness. Considered also was any evidence of bias, memory and capacity to remember and any inconsistencies in testimony. The demeanour and manner of speech, consistency of retelling of the story or self-contradiction were also important in the assessment. It was always important to make sure that the testimony “make sense” and there was a consistency in the description of the events by witnesses. Timing and circumstances were also important consideration in assessing credibility. When faced with inconsistencies about timing and location of events, consideration was given to aspects of age and circumstance of the witnesses.

Further in determining the appropriate guidelines for assessing credibility, the Committee relied on Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), (52)O.R. (2d )302. The Committee accepts the importance of its duty to state clearly its grounds for supporting the evidence that is presented by witnesses and conversely for disbelieving evidence. All parties to a process should have the satisfaction of knowing that they have been fairly dealt with and understood. The Committee assessed the relative force of testimony. Discrepancies have been assessed. Common sense and knowledge of human nature were considered. The appearance and demeanour of witnesses were an important consideration. The relative powers of perception and ability to observe were also important factors. Self-interest in the litigation and partisanship were also considered. The Committee was also very much aware of the issues of probability and improbability. The Committee questioned any instances of contradiction and inconsistency and the general sense of truthfulness of witnesses.

The Committee accepted the advice of ILC and the comments of College Counsel in his closing submissions that this was civil and not a criminal matter and therefore the Committee was to proceed on the principle of the balance of probabilities.

The Committee assessed four witnesses: Mr. Shanmugam, Ms. Dolores, the Student, and the Member.

Mr. Shanmugam

The Committee accepts that Mr. Shanmugam was able to recall the event in some detail. In his sharing of his testimony with the Committee, Mr. Shanmugam was consistent.

Mr. Shanmugam’s account was simple, sufficiently detailed and unwavering. Video tapes of the hallway outside the staff room corroborate parts of Mr. Shanmugam’s testimony. These video tapes confirm the time and location of the incident and are consistent with Mr. Shanmugam’s testimony. The Committee accepts that Mr. Shanmugam had no motivation except to speak the truth. The Committee considered that Mr. Shanmugam was on his second day of work in his full-time employment and that he was risking his job security by speaking openly and reporting the event. Under cross-examination, Mr. Shanmugam continued to maintain the integrity of his account of the incident. Member’s Counsel inferred that Mr. Shanmugam, on his second day of work, was not familiar with the culture of the school, merely witnessed a hug and took it out of the context. The Committee accepted that all the other facts of the matter give weight to the observation of Mr. Shanmugam that there was a sexual encounter.

Ms. Douglas

The Committee accepts that the testimony of Ms. Douglas was credible. Ms. Douglas’ testimony assisted in strengthening Mr. Shanmugam’s and the Student’s testimony. The Committee accepted several pieces of Ms. Douglas’ testimony: that she did speak to Mr. Shanmugam and verified that he was upset; that she did see the Student and Member together in the staff room; and that the Student did appear “teary eyed.” The Committee did not accept Defence Counsel’s statements that Ms. Douglas’ testimony did not corroborate with Mr. Shanmugam since it did on several key issues. On these points, Ms. Douglas’ testimony was clear, concise and cogent. In giving her testimony, Ms. Douglas was calm, frank and responsive.

The Student

The Student’s testimony was wavering, equivocal and self-contradictory. The Student was often not responsive or evasive. At times he had a clear and detailed memory of the incident; however, when pressed about other important details he stated that he could not remember. The Student answered numerous questions with a “No” before he was even asked a question. It remains unclear to the Committee why the Student was so reluctant to give testimony to the school board, the police and at this hearing. The Committee considered that if this was a case of a false allegation, why would the Student not be more forthcoming and be prepared to give clear, cogent and convincing evidence. The Student had to be subpoenaed to appear before the Committee. The Committee also carefully considered College Counsel’s suggestion in his closing submissions that perhaps the Student was motivated by the possibility of embarrassment if the incident became public knowledge.

Defence Counsel made points about the Student’s demeanour and testimony. Defence Counsel described the Student as honest, credible and forthright. The Committee saw no evidence to support this characterization. In response to the assertion that there was no “sexual relationship” between the Student and the Member, the Committee is of the opinion that a sexual encounter did take place in the staff room. The Committee accepted the testimony of Mr. Shanmugam that moaning could be heard, and testimony from both the Student and the Member that there was no other possible source of this sound. They accepted the testimony of Mr. Shanmugam, the Student, and the Member, that the Student was on one knee, and the testimony from Mr. Shanmugam, Ms. Douglas, and the Student, that the moment was “awkward” and the Student appeared teary-eyed. Further, the Committee did not receive any plausible explanation from the Member or the Student why they were not forthcoming with an explanation of what they were doing in this pose to Mr. Shanmugam, the administration, the police, or in this hearing. The Committee concluded that their behaviour appeared to be covering up much more than a hug.

Member’s Counsel reiterated that the Student did speak to board officials, the police and was present at the hearing. The Committee recognized that the Student was decidedly uncooperative and under subpoena.

The Member

The Committee assessed the Member’s testimony very carefully with the overriding principle of establishing the credibility of the evidence that he offered.

The Committee found the Member to be highly evasive, contradictory and reluctant. The Member’s testimony was diametrically opposed to that given by all the other witnesses. Mr. Shanmugam and Ms. Douglas gave testimony that they saw the Member and the Student in the staff room and had a clear memory of that encounter. In response, the Member maintained that he never saw Mr. Shanmugam or Ms. Douglas. Both, Mr. Shanmugam and the Student clearly stated that at one point the Student was on one knee in close proximity to the Member which could be construed as intimate.

The Committee heard evidence that the Member refused to comment on any allegations during the Board investigation. The Member would not name the Student in the staff room with him, even though the Student’s image was clearly captured on the security video footage. When asked by the Board where the Student was positioned in relation to the Member, the Member refused to answer. Finally, the Member refused to provide the names of the members of the [XXX] team. This refusal flies in the face of the fact that there was a [XXX] team list that the Board had in its possession. These three behaviours attest to the assessment that the Member was highly evasive, contradictory and reluctant. The Committee gave significant weight to the expectation that a person facing allegations such as these would have defended his position with great vigour. This would be a reasonable reaction. The Member did not do this. The Member’s behaviour and responses were not credible. The Committee agreed with College Counsel’s assertion that the Member’s behaviour was consistent with someone who had something to hide.

The Committee considered carefully the submissions of Member’s Counsel. Member’s counsel submitted that the Member had a right to remain silent. ILC advised that this was not a criminal matter and that therefore that “right” did not exist. In certain situations, an adverse inference can be made when a person remains silent in the face of wrongdoing. The Committee notes that if it determined that this situation applied, this would be an adverse inference only and not determinative of the facts. However, based on the submissions of College Counsel, the Committee feels that an adverse inference would be appropriate in this situation.

Date: May 14, 2014

______________________________ Christine Bellini, OCT

Chair, Discipline Panel

Stefanie Achkewich, OCT

Member, Discipline Panel

Mel Greif

Member, Discipline Panel