Ontario College of Teachers v. Bédard, 2015 ONOCT 2

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v BÉDARD, 2015 ONOCT 2

Date: 2015-03-23

IN THE MATTER OF the Ontario College of Teachers Act, 1996 (the “Act”) and Ontario Regulation 437/97 thereunder;

AND IN THE MATTER OF a discipline proceeding against André Bédard, OCT, a member of the Ontario College of Teachers.

PANEL: Jean-Luc Bernard, OCT, Chair

Monique Lapalme Arseneault

Louis Sloan, OCT

BETWEEN: )

) Dina Awad, ) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,

) assisted by Annie Lacroix, Law Clerk

– and – )

ANDRÉ BÉDARD ) Cassandra Porter,

(CERTIFICATE #283851) ) Sack Goldblatt Mitchell LLP,

) for André Bédard

) Renée Kopp,

) Jones Harley LLP,

) Independent Legal Counsel )

) Heard: March 5, 2015

DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on March 5, 2015 at Toronto.

A Notice of Hearing, dated January 15, 2014, was served on André Bédard (“the Member”) requesting his attendance before the College’s Discipline Committee on February 27, 2014 to set a date for a hearing. The hearing was subsequently set for March 5, 2015.

The Member was not in attendance at the hearing.

ALLEGATIONS

The allegations against the Member in the Notice of Hearing (Exhibit 1) are as follows:

IT IS ALLEGED that André Bédard 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, or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(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);

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

At the hearing on March 5, 2015, Counsel for the College announced that the College was withdrawing two of the misconduct allegations, specifically those of contravening sections 1(7.2) and 1(15) of Ontario Regulation 437/97 of the Act, as set out in paragraphs d) and e), above. The Committee agreed to the withdrawal of these allegations.

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 Plea of No Contest (“the Agreement”) (Exhibit 2), which provides as follows:

1. Mr. Bédard is a member of the College. A copy of the information concerning the registered member of the Ontario College of Teachers is attached to these presents [Exhibit 2] as Appendix A.

2. At all material times, the Member was employed by the Conseil des écoles catholiques du Centre-Est (the “Board”), as a teacher. From September 2007 to August 2012, the Member taught [XXX] at École [XXX] (“the School”) in [XXX].

3. At all material times, Student 1 and Student 2 were students at the school where the Member taught [XXX].

4. During the 2008-2009 school year, when Student 1 was in Grade [XXX], the Member hit Student 1 lightly on the head with a metal water bottle to indicate that he needed to move.

5. During the 2009-2010 school year, when Student 1 was in Grade [XXX], the Member jokingly tied knots in Student 1’s shoelaces.

6. After the incidents described in paragraph 5, above, when Student 1 replaced his laced shoes for shoes with Velcro fasteners, the Member jokingly fastened the shoes together by the Velcro fastenings and tossed them in a basketball hoop.

7. At various times when Student 1 was in his classroom, the Member made comments on Student 1’s appearance, such as:

(a) Student 1 had had a fight with a comb; and

(b) Student 1 had just got out of bed.

If the matter went to a contested hearing, Student 1 would testify that the Member had also commented that he “looked like a girl because his hair was past his ears.” The Member would testify that he had no recollection of making this comment.

8. If this matter went to a contested hearing, Student 2 would testify that in October 2010, while she was in Grade [XXX] and was doing sit-ups, the Member dropped a medicine ball on her stomach. The Member would testify that if he had dropped a ball on Student 2’s stomach while she was doing sit-ups, it would not have been a medicine ball, but a much lighter ball, such as a volleyball, and no more than 30 cm high, as a joke.

9. If this matter went to a contested hearing, Student 1 would testify that on or about January 10, 2011, while he was sitting near a platform in the gymnasium, the Member pushed him in the chest with his foot, making him fall over. The Member would testify that he kneed Student 1 lightly to steer him towards his place.

10. If this matter went to a contested hearing, Student 2 would testify that in March 2012, during a [XXX] class, she asked the Member why only some students had permission to visit the washroom during class. Student 2 would testify that the Member yelled at her that it was none of her business whether the others had to “pee” or not and he did not have to justify his decision to her. The Member would testify that he did not “yell” at Student 2 in particular, but had raised his voice and scolded his entire class to the effect that the behaviour of some students who kept asking repeatedly to visit the washroom was not acceptable.

11. After the incidents described in paragraphs 2-10, above, and following complaints filed with the School and the Board by the parents of Students 1 and 2, the Member accepted a transfer to École [XXX], another of the Board’s schools.

PLEA OF NO CONTEST

12. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “agreed facts”).

13. For the purposes of this proceeding only, the Member agrees to a finding by the Discipline Committee that the aforementioned agreed facts constitute professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of sections 1(5), 1(7), 1(7.1), 1(18) and 1(19) of Ontario Regulation 437/97.

14. The Member states that:

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

(b) he understands that by signing this document, he consents to the presentation of the evidence as set out in the agreed facts before the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving his right to require the College to prove the case against him, and his right to have a hearing on this matter;

(d) he understands that any agreement between the College and the Member with respect to penalty is not binding on the Discipline Committee; and

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

15. The Member is providing a 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, as amended, for the purpose of this proceeding under the College of Teachers Act, S.O. 1996, chapter 12, as amended, and for no other purpose. The Member’s Plea of No Contest does not constitute an admission by him as to the facts or findings in any other civil, criminal or administrative proceeding.

16. In view of the aforementioned admitted facts and the Plea of No Contest, the College and the Member submit that the Discipline Committee ought to find that the Member’s actions constitute professional misconduct.

DECISION

In the matter of André Bédard and based on the Agreed Statement of Facts and Plea of No Contest and the submissions by counsel, the Committee finds that the evidence supports a finding of professional misconduct and finds that André Bédard is guilty of professional misconduct, being more particularly breaches of sections 1(5), 1(7), 1(7.1), 1(18) and 1(19) of Ontario Regulation 437/97, as set out in the Notice of Hearing.

REASONS FOR DECISION

The Member has admitted the truth of the facts as set out in paragraphs 1 to 11 of the Agreement and acknowledges that the facts referred to in paragraphs 4 to 10 show that his actions constitute professional misconduct.

The Committee accepts the Agreed Statement of Facts and Plea of No Contest as produced by the parties. The facts produced support the case for professional misconduct and the Committee finds the Member guilty of professional misconduct.

In the Committee’s opinion, the incidents which occurred are inappropriate. For example, the incident in which the Member allegedly hit the student with a metal water bottle and the incident with the ball could have had more serious repercussions, endangering the student’s health. Moreover, members of the College must ensure that the students in their care feel valued and respected at all times. By commenting on his students’ appearance, the Member did the opposite.

In acting as he did, the Member failed to maintain the standards of the teaching profession, by abusing students verbally and physically, which would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. In addition, he engaged in conduct unbecoming a member.

JOINT SUBMISSION ON PENALTY

The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee is as follows:

1. The Discipline Committee requires the Member to appear before the Committee on July 7, 2015 to receive a reprimand delivered in person at the College’s offices at 101 Bloor Street West in Toronto, Ontario, with the fact of the reprimand to be recorded in the public register.

2. The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification:

(a) Within 120 days of the date of this order, the Member must, at his own expense, enrol in and successfully complete a course, approved in advance by the Registrar, on anger management and maintaining appropriate boundaries, subject to the following conditions:

(i) within 30 days of the date of the Discipline Committee’s Decision and Order, the Member must submit to a Registrar-approved course provider a copy of the Agreed Statement of Facts and Plea of No Contest and the Joint Submission on Penalty produced in evidence at the hearing into this matter, in addition to the Discipline Committee’s Decision and Order;

(ii) after a review of the documents referred to in paragraph (i), above, the course provider must submit to the Registrar, for his approval, details of the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The program proposed by the course provider must also specify the length of said course, and its objectives;

(b) within 30 days of completion of the course described in paragraph (a), above, the Member must provide the Registrar with proof in writing from the course provider stating that:

(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the stated objectives of said course.

3. The Committee directs that a summary of its decision and order be published in the College’s official publication, Professionally Speaking/Pour parler profession. The parties have failed to reach agreement on the matter of the publication of the Member’s name. Submissions on this issue will therefore be made to the Discipline Committee.

COLLEGE’S SUBMISSION ON PUBLICATION

Counsel for the College urged the Committee to publish the Member’s name in the College’s official publication, Professionally Speaking/ Pour parler profession. She argued that the publication of his name would act as a specific deterrent for the Member and a general deterrent for the teaching profession.

Counsel for the College argued that one of the purposes of the penalty is to act as a deterrent with respect to the Member and the profession, to reprimand the Member and to serve and protect the public.

According to Counsel for the College, the publication of the Member’s name would serve to expose his actions, act as both a specific and general deterrent and make the members of the teaching profession aware that the College does not tolerate such professional misconduct.

Counsel ended her submission by stating that the publication of the Member’s name would ensure transparency and serve and protect the public interest.

MEMBER’S SUBMISSION ON PUBLICATION

Member’s Counsel asked that the Member’s name not be published in Professionally Speaking/ Pour parler profession. She reminded the Committee that it had discretion not to publish the Member’s name and argued that the reprimand and the course her client had to take were sufficient to fulfil the College’s mandate.

From the perspective of a general deterrent, all the profession needed to retain is that behaviour of this kind has consequences and possible penalties. The publication of the Member’s name contributed nothing to the attainment of the College’s objectives including specific and general deterrents, transparency and protection of the public.

Counsel also asked that the Committee take into account the Member’s right to privacy, contending that the recording of the Notice of Hearing and the Decision in the College’s public register already satisfied the need for transparency and protected the public interest.

PENALTY AND ORDER

The Committee accepted the Joint Submission on Penalty and made the following order:

1. The Discipline Committee requires the Member to appear before the Committee on July 7, 2015 to receive a reprimand delivered in person at the College’s offices at 101 Bloor Street West in Toronto, Ontario, with the fact of the reprimand to be recorded in the public register.

2. The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification:

(a) Within 120 days of the date of this order, the Member must, at his own expense, enrol in and successfully complete a course, approved in advance by the Registrar, on anger management and maintaining appropriate boundaries, subject to the following conditions:

(i) within 30 days of the date of the Discipline Committee’s Decision and Order, the Member must submit to a Registrar-approved course provider a copy of the Agreed Statement of Facts and Plea of No Contest and the Joint Submission on Penalty produced in evidence at the hearing into this matter, in addition to the Discipline Committee’s Decision and Order;

(ii) after a review of the documents referred to in paragraph (i), above, the course provider must submit to the Registrar, for his approval, details of the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The program proposed by the course provider must also specify the length of said course, and its objectives;

(b) within 30 days of completion of the course described in paragraph (a), above, the Member must provide the Registrar with proof in writing from the course provider stating that:

(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the stated objectives of said course.

3. The Committee directs that a summary of its decision and order be published in Professionally Speaking/ Pour parler profession, including the Member’s name as it appears in the College’s public register.

REASONS FOR PENALTY DECISION

The Committee carefully weighed the arguments put forward by the parties and the case law that was produced. The fact that the parties have reached an agreement indicates that an appropriate balance of interests has been achieved.

The Committee found that the Member and the College had reached agreement on the chief elements of the penalty, that is, the course on anger management and maintaining appropriate boundaries, and a reprimand. The parties further agreed on the publication of a summary of the decision and order of the Committee in the College’s official publication.

In view of the seriousness of the Member’s actions and the fact that the proposed penalty addresses the expectations of the teaching profession with respect to discipline, the Committee upholds the Joint Submission on Penalty.

The reprimand by his peers delivered on behalf of the teaching profession acts as a deterrent with respect to the Member. The fact that he has been reprimanded will be recorded in the public register and will appear on the Member’s Certificate of Qualification and Registration for three years, thereby acting as a deterrent for the teaching profession in general.

The course on anger management and maintaining appropriate boundaries which the Member must take addresses his conduct and should assist the Member in deepening his understanding of the seriousness of his actions.

In the Committee’s estimation, the publication of the Member’s name as it appears in the College’s public register is appropriate in this case in view of the Member’s injurious actions and behaviour.

The publication of a summary of the decision and order of the Committee in the College’s official publication, Professionally Speaking/ Pour parler profession, including the Member’s name, serves and protects the public interest, ensures the transparency of College discipline proceedings and conveys to the public that the College acts decisively and consistently when such conduct is brought to its attention.

The Committee therefore finds that the penalty is appropriate in the circumstances and that it serves and protects the public interest.

March 23, 2015

Jean-Luc Bernard, OCT

Chair, Discipline Panel

______________________________,

Monique Lapalme Arseneault

Member, Discipline Panel

Louis Sloan, OCT

Member, Discipline Panel