Ontario College of Teachers v Gedies, 2015 ONOCT 25

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gedies, 2015 ONOCT 25

Date: 2015-11-30

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

Grant Gerhard Gedies, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Irene Cheung, OCT

Louis Sloan, OCT

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,

) Law Clerk

– and – )

GRANT GERHARD GEDIES ) Patricia D’Heureux,

(CERTIFICATE #438873) ) Cavalluzzo Shilton McIntyre

) Cornish LLP,

) for Grant Gerhard Gedies

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: November 20, 2015

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 20, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 30, 2012 (Exhibit 1) was served on Grant Gerhard Gedies (the “Member”), requesting his presence on August 30, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 20, 2015.

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

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) 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) 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).

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 2), which provides the following:

1. Grant Gerhard Gedies is 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 an employee of the Toronto District School Board (the “Board”) and was a Grade [XXX] teacher at [XXX] School, North York, Ontario.

3. During the 2010-2011 school year the Member made inappropriate and offensive comments to students in his Grade [XXX] class. Specific examples reported by students are described below.

Student 1

4. In October 2010, during silent reading time in his class, the Member asked Student 1: “Why are you looking at the pictures? Are you gay? It’s okay to be gay. What’s the name of the street, Church Street?” When Student 1 responded, the Member asked him, “Do you and [Student 2] like each other?” Church Street is a main street in the part of Toronto known to be a heavily gay neighbourhood.

5. The Member asked Student 1 and Student 2 to stay after class. The Member told them a story about his gay friends, kept them for 30-35 minutes and said he was sorry for saying “are you guys gay and that it was okay to be gay.”

6. In September or October 2010, Student 1 had a hall pass with words “take a walk” written on it to permit him to leave the classroom. The Member signed the hall pass to confirm that Student 1 could leave the classroom but also wrote on it “Church Street”.

7. On other occasions, the Member referred to Student 1 as “dinky”, “dinkurt” and “gay” in class.

Student 2

8. The Member called Student 2 a cream puff and called him gay. During the same exchange, Student 2 called the Member gay.

9. Student 2 did not feel that the Member was joking at the time.

Student 3

10. In and around October 2010, the Member called Student 3 fat. Student 3 asked the Member, “Are you calling me fat?” to which the Member responded, “If the shoe fits then it’s right.”

Student 4

11. The Member made fun of Student 4, called him a cry baby, told him to grow up and not to be a snitch.

12. On one occasion the Member said to Student 4 “No one likes you.” The comment was made in front of other students and most of the class laughed. Other students told the Member his comment was mean and not funny.

Student 5

13. The Member told Student 5 “You’re Smokey”, in reference to the fact that the parents of Student 5 were smokers and the Member could smell smoke on his clothes.

Student 6

14. On one occasion when Student 6 asked the Member not to take a photo of him, the Member said, “I won’t. I don’t want my camera to break.”

Board Actions

15. The Member had previously been warned by the Board with respect to the use of derogatory language and advised to treat students with respect. Attached to Exhibit 2 at Tab “B”

is a copy of the warning letter dated May 4, 2007.

16. On November 23, 2010 the Member was suspended by the Board for five days without pay as a result of his treatment of students. Attached to Exhibit 2 at Tab “C” is a copy of the letter from the Board dated November 23, 2010.

17. On March 21, 2011 the Member was suspended by the Board for five days without pay again with respect to his treatment of students. Attached to Exhibit 2 at Tab “D” is a copy of the letter from the Board dated March 21, 2011.

GUILTY PLEA

18. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).

19. 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(7), 1(15), 1(18 – unprofessional) and 1(19).

20. 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 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 with the advice of legal counsel.

21. 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 allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) 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(7), 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 17 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(7), 1(15), 1(18 – unprofessional) and 1(19).

Paragraphs 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 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 4, 7, 8, 10, 11, 12, 13 and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 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) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 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 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 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 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 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 to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) the Member shall enrol in and successfully complete at his own expense, within 90 days of the Discipline Committee’s Order, a course of instruction pre-approved by the Registrar regarding professional boundaries and respect for student sensitivities;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty, made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. 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 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 the facts of this case are serious enough to warrant publication with the name of the Member. The Member made numerous inappropriate and hurtful comments to six of his young students which resulted in two suspensions by his Board.

College Counsel submitted that publication with name addresses the principles of specific deterrence, general deterrence, transparency and accountability. Publication with name acts as a specific deterrent to the Member and a general deterrent to the profession as it informs the Member and the profession that this type of serious misconduct is not tolerated and that it will be addressed appropriately by the College. College Counsel further submitted that publishing the Member’s name is a necessary deterrent given that the Member’s previous warning from his Board did not lead to a significant enough improvement in his behaviour.

Furthermore, College Counsel submitted that publication with name achieves the penalty objectives of transparency and accountability by informing the profession and the public that the College does not shield its members from public scrutiny when a member treats students in such a manner. According to College Counsel, the Committee ought to order publication with the Member’s name because there is no good reason not to publish the Member’s name that outweighs the interests of transparency and the protection of the public interest.

College Counsel urged the Committee to rely on the following three cases involving inappropriate comments made by members to students when making its determination with respect to publication: Ontario College of Teachers v. Bordonali, 2010 LNONCTD 14; Ontario College of Teachers v. Thompson, 2014 LNONCTD 67; and, Ontario College of Teachers v. Ashford-Smith, 2014 LNONCTD 73. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all three cases.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. According to Member’s Counsel, the Member has taken responsibility for his actions by cooperating throughout these proceedings and by entering a guilty plea in this matter, which spared any witnesses from having to testify. Counsel for the Member noted that the misconduct is at the low end of the spectrum of professional misconduct, it arose four years ago, and it only occurred during the course of one academic year. Since that time, the Member has restored his reputation by successfully continuing to teach without further incident.

According to Member’s Counsel, the Committee has the discretion to order publication with or without the Member’s name, and the relevant legislation does not require the Committee to order publication with name absent a good reason not to publish the Member’s name, as College Counsel had suggested. The Committee must balance the public interest against the rights of the Member when determining whether or not to publish the Member’s name in Professionally Speaking/Pour parler profession. Member’s Counsel submitted that publication with name, in this instance, would constitute unnecessary punishment.

Counsel for the Member submitted that the Committee should consider whether the penalty objectives can still be met without publishing the Member’s name. In this case, the Member will receive a reprimand and he will be required to take additional coursework, which will satisfy the objectives of deterrence and remediation. Furthermore, Member’s Counsel submitted that publishing the Member’s name is not necessary to protect the public interest given that the Member has successfully returned to teaching and that there has been no suggestion that any student in this case requires protection. Publishing a summary of the Committee’s finding and order in the College’s official publication, even without including the Member’s name, will send a message to the profession that there are consequences for engaging in conduct similar to that of the Member in this matter.

Member’s Counsel urged the Committee to rely on the following four cases when determining the issue of publication: Ontario College of Teachers v. Reist, 2014 LNONCTD 60; Ontario College of Teachers v. Williams, 2013 LNONCTD 77; Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97; and, Ontario College of Teachers v. Brame, 2014 LNONCTD 76. According to Member’s Counsel, the Committee should follow these similar cases in which the members’ names were not published in Professionally Speaking/Pour parler profession.

Reply Submissions of College Counsel

In reply to the submission of Member’s Counsel that the misconduct in this case is at the low end of the professional misconduct spectrum, College Counsel submitted that the repeated nature of the misconduct and the number of students that the Member targeted is problematic, even if the misconduct itself was not at the highest end of the spectrum. The Member verbally abused numerous students and his misconduct occurred even after he had been warned by the Board about the use of inappropriate language and the need to treat students with respect. Accordingly, College Counsel submitted that the Member’s misconduct should not be considered to fall at the low end of the spectrum.

In response to the submission of Member’s Counsel that the legislation does not require the Committee to order publication with the Member’s name, College Counsel reiterated her earlier submission that in order to protect the public interest and absent a good reason not to publish the Member’s name, the Committee should order publication with the name of the Member.

Finally, College Counsel submitted that the cases presented by Member’s Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

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 the Member’s repeated inappropriate and offensive comments directed towards numerous students warrant a reprimand. 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.

The Committee finds that the courses of instruction regarding professional boundaries and respect for student sensitivities will assist in the rehabilitation of the Member. This remedial coursework will address the Member’s pattern of insensitive behaviour and his lack of respect for students and it will help him to make better decisions in any future interactions with students.

The Committee recognizes that it has the discretion to order the publication of its finding and order with or without the Member’s name. The Committee finds that publication with name is warranted in this case given the repeated nature of the Member’s misconduct and the fact that the Member targeted many students with his inappropriate and insensitive comments. The Committee notes that the Member received one warning and two suspensions from his Board before he corrected his misbehaviour. The Committee is concerned that the Board needed to intervene three times in order for the Member to recognize that his conduct was unacceptable.

The Committee accepts the submission of College Counsel that the case law presented by Counsel for the Member involved misconduct that was not as serious or recurrent as that in the Member’s case. In this matter, the Member targeted students by insulting or demeaning them with a variety of comments that the Member knew, or ought to have known, were discriminatory and hurtful. Through his actions, the Member abused his position of trust and created an atmosphere that was not nurturing or conducive to building or maintaining students’ self-esteem.

Publishing the Member’s name in the College’s official publication will identify to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. It will serve as a specific deterrent to the Member as it holds him 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: November 30, 2015

Tom Potter

Chair, Discipline Panel

______________________________ Irene Cheung, OCT

Member, Discipline Panel

Louis Sloan, OCT

Member, Discipline Panel