Ontario College of Teachers v. Dempster, 2015 ONOCT 17

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Dempster 2015 ONOCT 17

Date: 2015-11-15

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

Scott Andrew Dempster, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair Irene Dembek, OCT Sara Nouini, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Law Clerk

– and –

SCOTT ANDREW DEMPSTER (CERTIFICATE #434248) Scott Andrew Dempster, Self-Represented

Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: November 18, 2015

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 18, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 1, 2014 (Exhibit 1) was served on Scott Andrew Dempster (the “Member”), requesting his presence on August 11, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 18, 2015.

The Member was not in attendance for the hearing and did not have legal representation, but he did provide written submissions to the Committee (see Exhibit 5).

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 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 or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(e) 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);

(f) 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

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

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Scott Andrew Dempster was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed by the Halton District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Milton, Ontario.

3. At all material times, Student 1 and Student 2 were male students of the Board. Student 1 and Student 2 were born in 1996.

4. At all material times, Student 3 was a male student of the Board. Student 3 was born in 1999.

5. At all material times, Student 1 and Student 2 were former students of the School and Student 3 was a student at the School.

6. The Member and Student 1’s family were friends. In or about April 2011, the Member took Student 1 out to dinner without his family.

7. On or about February 19, 2012, the Member attended at Student 1’s family home for dinner. After dinner, the Member, Student 1 and his family decided to go into the hot tub.

8. Student 1 went into his bedroom to change into a bathing suit. The Member went into the student’s bedroom at the same time. Student 1 and the Member both undressed and changed into bathing suits while alone together in Student 1’s bedroom.

9. In and around January 2008 to March 2012, the Member had an inappropriate personal relationship with Student 2.

10. The Member purchased items for Student 2, took him snowboarding, sent him text messages about wanting to “hang out”, chatted on Facebook and sent Student 2 and paid to send his sister to camp.

11. When Student 2 started high school, he “hung out” alone with the Member about twice a month.

12. In addition, the Member took Student 2 alone to the movies.

13. On an occasion when Student 2 was in grade [XXX], the Member spent time with Student 2 and his friends outside class engaging in personal discussions.

14. If the Member were to testify, he would say that he and Student 2’s family were friends and his relationship with Student 2 developed in that context.

15. During the 2011-2012 academic year, the Member had an inappropriate personal relationship with Student 3. Student 3 was in Grade [XXX] at the School at the time.

16. The Member took Student 3 for haircuts, took him to the movies, took him skating and got together with him to edit movies together. The Member took Student 3 by public transit to see a play and they went to dinner together after the play.

17. During this time, the Member also asked Student 3 to join the School’s[XXX] club.

18. If the Member were to testify, he would say that Student 3 is the son of the Member’s business partner in a [XXX] business and that his relationship with Student 3 developed in that context.

19. The Member resigned his employment with the Board on or about June 30, 2012.

GUILTY PLEA

20. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 19 above (the “Admitted Facts”).

21. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18-unprofessional), and 1(19).

22. 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 otherwise 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 him and Counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and that he has the right to obtain the advice of legal counsel.

23. 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

Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b), (c) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1), 1(7.2) and 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

Having considered the Agreed Statement of Facts and Guilty Plea, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18-unprofessional), and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 19 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18-unprofessional), and 1(19).

Paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 4), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;

2. direct that there be publication of the finding 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 to whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member addresses the principles of specific and general deterrence, transparency and accountability. College Counsel submitted that publication with name acts as a general deterrent as it reminds other members of the profession to beware of engaging in inappropriate relationships with students, and that teachers are on duty all of the time. Publication with name informs members of the profession that similar conduct will result in serious consequences. College Counsel further submitted that the Member’s troubling conduct warrants the publication of his name. The Member engaged in inappropriate relationships with three young male students and spent time alone with them outside of the School, without their parents being present.

College Counsel reminded the Committee that its mandate is to serve and protect the public interest through openness, transparency and accountability. Publication with name assures the public that the College, a self-regulating body, does not shield its members that engage in professional misconduct.

College Counsel referred the Committee to two cases involving inappropriate relationships with students: Ontario College of Teachers v. Kernohan, 2014 LNONCTD 95 and Ontario College of Teachers v. Schnabel, 2013 LNONCTD 100. College Counsel noted that these cases were similar to the Member’s case and that publication with name was ordered in both instances. College Counsel submitted that like cases should be treated alike; similar conduct should give rise to similar sanctions.

Submissions of the Member

Although not present, the Member made written submissions regarding publication with his name (see Exhibit 5). In his written submissions, the Member submitted that because he does not intend to return to teaching and will never be a member of the College again, publishing his name is not necessary.

The Member further submitted that as a result of false accusations made against him in the past regarding a student, publication with his name would only amount to further public shaming. The Member submitted that he has spent almost four years attempting to rebuild a second career and the shame associated with publishing his name would cause further damage to his reputation. The Member asked the Committee to consider a book on public shaming, So You’ve Been Publicly Shamed (see Exhibit 5A), when making its decision regarding publication with name.

Reply Submissions of College Counsel

In reply, College Counsel submitted that the goal of publication with name is not to shame members of the profession but that it is to serve as a specific and general deterrent. Furthermore, College Counsel submitted that because the Member is no longer a member of the College and has no intention of returning to teaching, publication with his name will not have the same “sting” as it would if he were still teaching.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that revocation is the appropriate penalty in this case. The Member failed to respect professional boundaries by engaging in inappropriate relationships with three young male students. Although the Committee is aware that the Member would say, if he were to testify, that these relationships developed through his personal relationships with the students’ parents, he ought to have known that members of the teaching profession are to conduct themselves in a professional manner both inside and outside of the classroom. These relationships were not within the scope of appropriate teacher-student relationships. Accordingly, the Committee finds that the Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession.

The Committee finds the Member’s repeated pattern of inappropriate behaviour towards young male students very troubling. As such, publication of the finding and order of the Committee in summary form, with the name of the Member, is necessary and warranted.

Publication with the name of the Member identifies to the profession the nature of the Member’s misconduct and the consequences for such behaviour. As a general deterrent, publication with name will inform the public and the teaching profession that this type of conduct is not tolerated and will result in the harshest penalty - revocation. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

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

Date: November 25, 2015

Robert Gagné Chair, Discipline Panel

Irene Dembek, OCT Member, Discipline Panel

Sara Nouini, OCT Member, Discipline Panel