Ontario College of Teachers v. Desjardins, 2015 ONOCT 18

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Desjardins, 2015 ONOCT 18

Date: 2015-12-03

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 Réjean Desjardins, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair

Vicki Shannon, OCT

Ravi Vethamany, OCT

BETWEEN: ) Alexandre Blanchard

) and Christine Lonsdale,

ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP,

) for Ontario College of Teachers

– and – )

) Lise Leduc,

RÉJEAN DESJARDINS ) Goldblatt Partners LLP,

(CERTIFICATE #261322) ) for Réjean Desjardins

) Renée Kopp,

) Jones Litigation Counsel LLP,

) Independent Legal Counsel

) ) Heard: November 23, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 23, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated March 10, 2014 (Exhibit 1) was served on Réjean Desjardins (the “Member”), requesting his presence on April 22, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 23, 2015.

The Member was in attendance for the hearing and had legal representation.

ALLEGATIONS

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

IT IS ALLEGED that Réjean Desjardins is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teacher’s 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 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);

(c) 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

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

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. Réjean Desjardins is a member of the College. 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 Conseil des écoles publiques de l’Est de l’Ontario (the “Board”) as a teacher. During the 2012-2013 school year, the Member was teaching at École élémentaire publique l’Odyssée in Orléans. Prior to that, he taught at École élémentaire publique Le Prélude (“École Le Prélude”) and École secondaire publique Louis-Riel (“École Louis-Riel”).

3. During the 2012-2013 school year, the Member’s conduct contravened the standards of the teaching profession, in that:

(a) he used his access card to enter École Louis-Riel outside work hours without permission;

(b) he used his access card to enter École Le Prélude outside work hours without permission;

(c) he kept and used a master key to enter premises inside École Louis-Riel without permission;

(d) he took the contents of a small cash-box (approximately $600) from a teacher’s room at École Louis-Riel;

(e) he took a sports bag containing a pair of snowshoes from École Louis-Riel;

(f) he used the École Louis-Riel photocopier to make numerous photocopies, without permission;

(g) he used an access code to disarm the alarm at École Louis-Riel and enter the school, without permission;

(h) he used the access code of another teacher at École Louis-Riel to disarm the alarm and enter the school, without permission.

4. The Member admitted these allegations when confronted by the Principal of the school. Attached to Exhibit 2 at Tab “B” are the notes from the interview in which the Member admitted these acts. The Member subsequently repaid a portion of the monies from the petty cash, that is, approximately $350. He eventually repaid the full amount from the petty cash to Laurianne Rocca, the police officer in charge of his case.

5. On October 23, 2012, the Board suspended the Member without pay pending the completion of the Board’s investigation. On November 13, 2012, the Board dismissed the Member. Currently, the Member is no longer employed as a teacher in the Province of Ontario.

6. The Member has a pathological gambling disorder, as appears in the diagnosis established by psychiatrist Yasser Ad-Dab’bagh, dated November 14, 2012. In his report dated July 2, 2013, Dr. Ad-Dab’bagh states that he met with the Member six times between December 2012 and June 2013 to provide him with ongoing psychological treatment. He states that during this period, the Member made some progress.

PLEA OF NO CONTEST

7. By this document the Member admits, for the purposes of this proceeding only, the truth and accuracy of the facts and exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”). The Member acknowledges that these facts constitute conduct which is professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

8. The Member states that he:

(a) understands fully the nature of the allegations of professional misconduct against him;

(b) 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) 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) 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) understands that any agreement between the parties with respect to the penalty does not bind the Discipline Committee; and

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

9. The Member provides a plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee [and of the Fitness to Practise 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.

10. In light of the Uncontested Facts and the plea of no contest, the College and the Member submit that the Discipline Committee find that the Member’s acts constitute professional misconduct.

DECISION

Having considered the Statement of Uncontested Facts and Plea of No Contest, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Réjean Desjardins committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 6 of the Statement of Uncontested Facts and Plea of No Contest, Exhibit 2, and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

Paragraph 3 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraph 3 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member 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).

Paragraph 3 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member 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).

Paragraph 3 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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 3), 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 that the Member appear before the Committee immediately following the hearing of this matter to receive a verbal 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. direct the Registrar of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of three months from the date of the Committee’s order;

3. direct 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 ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case because these acts are an abuse of trust. He noted further that the acts took place in two schools. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

College Counsel referred the Committee to two cases involving inappropriate conduct by a member: Ontario College of Teachers v. Moffat, 2012 LNONECD 9 (“Moffat”) and Ontario College of Teachers v. Cameron, 2014 LNONECD 8 (“Cameron”). College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in both instances.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. The purposes of penalty, including specific deterrence, general deterrence, and transparency, will be met through the reprimand of the Member and the recording of the fact of the reprimand on the Register. There is no value added by publishing the Member’s name in the College’s official publication. Member’s Counsel also noted that the Committee had discretion concerning publication of the Member’s name.

Counsel for the Member added that publication with name in the College’s official publication would infringe on the Member’s privacy and be unduly prejudicial to the Member. The Member is currently teaching in Québec. He had to prove himself in his new school, and the publication of his name would not help with his rehabilitation as he grapples with the aforementioned psychological disorder.

Member’s Counsel objected to the two cases submitted by the College and argued that they should not be relied upon by the Committee during its deliberations. She drew the Committee’s attention to the differences in the content of the two cases. In Moffat, the Member’s acts put students at risk, which is not the case in the Desjardins case. In Cameron, the amount of money stolen was very large, $56,000, whereas the Member took $600.

Reply Submission of College Counsel

College Counsel replied to the submission of Member’s Counsel that no evidence had been produced linking a psychological disorder with the Member’s acts. He reminded the Committee that this case concerned breach of trust and theft.

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 the law confines the Committee’s role to determining only 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 the Member’s deplorable conduct warrants a reprimand by his peers. Numerous serious aggravating factors are present. The fact that, among other acts, the Member entered a school where he used to work outside work hours, without permission, to take approximately $600 from the petty cash in a teacher’s room and a sports bag containing a pair of snowshoes, is reprehensible. The Member’s repeated dishonest conduct undermines public trust in the teaching profession. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

Given the seriousness of the Member’s conduct, the Committee finds that a three-month suspension is reasonable and appropriate. In arriving at this decision, the Committee took into account both the aforementioned aggravating factors and the mitigating factors, including the fact that the Board has already suspended the Member from his duties without pay, and subsequently dismissed him, and the fact that the Member eventually repaid the full amount taken from the petty cash. Although the mitigating factors demonstrate that the Member has taken responsibility for his actions, this does not excuse the fact that his actions were very serious and undermined public trust in the teaching profession. The three-month suspension is therefore appropriate in the circumstances and indicates that such conduct is unacceptable. The recording of the fact of the suspension on the Register will serve as a general deterrent to other members of the teaching profession.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Although Member’s Counsel contended that publication with name in the College’s official publication could infringe on the Member’s privacy and be unduly prejudicial to the Member, no evidence has been produced in support of this argument. With respect to the argument that publication of the Member’s name would not help with his rehabilitation as he grapples with his pathological gambling disorder, here again the Committee finds that insufficient evidence of a link between publication of the Member’s name and his pathological gambling disorder has been produced. Accordingly, the Member’s name is to be published in the College’s official publication.

Publication with the name of the Member demonstrates to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. 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: December 3, 2015

Robert Gagné

Chair, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel

Ravi Vethamany, OCT

Member, Discipline Panel