Ontario College of Teachers v Giaschi, 2015 ONOCT 28

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Giaschi, 2015 ONOCT 28

Date: 2015-11-25

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

Peter David Giaschi, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair Jean-Luc Bernard, OCT Sara Nouini, OCT

BETWEEN: ) Caroline Zayid, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo, ) Law Clerk – and – ) PETER DAVID GIASCHI ) Heather Alden, (CERTIFICATE #458483) ) Ontario Secondary School Teachers’ ) Federation, ) for Peter David Giaschi ) Renée Kopp, ) Jones Litigation Counsel LLP, ) Independent Legal Counsel ) ) Heard: October 19, 2015

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 19, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated August 13, 2013 (Exhibit 1) was served on Peter David Giaschi (the “Member”), requesting his presence on September 18, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 19, 2015.

The Member was not in attendance for the hearing but 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) 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, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) [pre-2008 amendment] and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(c) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7) [post-2008 amendment];

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

(e) 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;

(f) 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);

(g) 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);

(h) 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. At all material times, Peter David Giaschi was 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 with respect to the Member.

2. At all material times, the Member was employed by the Hastings and Prince Edward District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”).

3. In or around September 2008, a Grade [XXX] female student (“Student 1”) performed an erotic monologue in front of the [XXX] class. The monologue performed by Student 1 was one of the monologue options offered to the class by the Member. The Member suggested she perform the monologue while lying on the floor and as though she were “having the best orgasm of her life”. Attached to Exhibit 2 at Tab “B” is a copy of the monologue titled “One Moment”.

4. In or around the period September to December 2008, the Member:

(a) used crude sexual language during class;

(b) made sexual references when instructing his students on how to act out a scene;

(c) suggested to a female student (“Student 2”) that she act as though she were drunk, because the character in the scene was supposed to have consumed alcohol. The Member then proceeded to mock Student 2 for her inexperience when she indicated that she had never been drunk;

(d) made crude comments about the sexual orientation and activities of the character Romeo in the play Romeo and Juliet;

(e) engaged in physical contact with students during a class by rolling on the floor with students, including full-body contact with students. If the Member were to testify, he would state that he intended this activity to be a form of “Contact Improvisation”, a dance technique. Although students raised concerns about the activity described as Contact Improvisation during the class, they did not refuse to participate;

(f) in December 2008, performed for students the George Carlin monologue, The Seven Words You Can Never Say on Television, which contains inappropriate language;

(g) during the course of teaching the play Hamlet to a class, the Member described the etymology of the word “cunt” and explained that it was really a beautiful word.

5. Attached to Exhibit 2 at Tab “C” is a copy of the School principal’s January 12, 2009 letter of discipline to the Member.

6. On or around May 22, 2009, the Member confronted an occasional teacher about an issue in front of students. The Member’s conduct made her feel humiliated and intimidated. The Member refused to discuss the issue with her outside of the classroom, despite her request that he do so.

7. On or around May 29, 2009, the Member left his school computer open to a Facebook conversation which included inappropriate comments about School administrators, accessible for students to view in his classroom. Attached to Exhibit 2 at Tab “D” is a copy of the Board superintendent’s June 3, 2009 letter of discipline to the Member, advising that the Member would be suspended for two days without pay.

8. On or around June 7, 2009, the Member sent School administrators an e-mail which included the statements: “thank you so much my Administrators for being there (not) and for celebrating them [students in a play] (not) and for mentioning them in the morning announcements (not) for seeing their work (not) for caring. Not”. Attached to Exhibit 2 at Tab “E” is a copy of the June 7, 2009 e-mail from the Member to School administrators.

9. As a result of the June 7, 2009 e-mail, the Member was suspended from the Board for an additional three days without pay. Attached hereto and marked as Exhibit “F” is a copy of the Board superintendent’s June 10, 2009 letter of discipline to the Member.

10. In or about October 2009, the Member:

(a) had a Grade [XXX] [XXX] class participate in the re-enactment of a gang rape of a student that had occurred in California, and act out parts of a rape scene;

(b) said to his class “can you believe how fucking stupid that is?”;

(c) told his class he could be fired for using the words “fuck, slut, bitch, faggot, gay”.

The activities and comments of the Member were confusing and frightening for students in the class. If the Member were to testify, he would say that his intention was to make his students think critically about the events that had occurred in California.

11. On November 3, 2009, members of the Board administration met with the Member for a discipline meeting relating to the conduct described in paragraph 10 above. Attached to Exhibit 2 at Tab “G” is a copy of a memorandum summarizing the meeting. Attached to Exhibit 2 at Tab “H” is a copy of a letter dated November 4, 2009 with respect to additional issues.

12. In or about 2009 and/or 2010, the Member posted comments on his personal website, making inappropriate comments about School staff. Attached to Exhibit 2 at Tab “I” are documents posted on the Member’s website.

13. In or about April 2010, the Member resigned from his employment with the Board effective April 1, 2010.

GUILTY PLEA

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

15. The Member hereby acknowledges that the Admitted Facts referred to above constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7) [post-2008 amendment], 1(7.2), 1(7.3), 1(15), 1(18), and 1(19).

16. 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 his counsel 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.

17. 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

At the hearing on October 19, 2015, Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing 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) [post-2008 amendment], 1(7.2), 1(7.3), 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 13 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) [post-2008 amendment], 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).

Paragraphs 3, 4, 6, 7, 8, 10 and 12 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 3, 4 and 10 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 3, 4 and 10 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraph 3, 4 and 10 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) or engaged in sexual abuse of a student or students as defined in section 1 of the Act.

Paragraphs 3, 4, 6, 7, 8, 10 and 12 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 3, 4, 6, 7, 8, 10 and 12 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 disgraceful, dishonourable or unprofessional, and engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(18) and 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 that the Member appear before the Committee, on a date to be scheduled by the Discipline Committee following a written request from the Member, 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 suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the date of the Order of the Discipline Committee relating to this matter [October 19, 2015] and the fact of the suspension is to be recorded on the Register;

3. 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 not return to a teaching position or to any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”) until the reprimand referred to in paragraph 1 above has been delivered;

(b) prior to returning to a Teaching Position, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary issues;

(c) within 30 days of his completion of the course outlined in (b) 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 documents, 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.

4. 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 publication with the name of the Member is warranted in this case. 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.

In support of this position, College Counsel referred the Committee to five cases: Ontario College of Teachers v. Badgley, 2014 LNONCTD 31; Ontario College of Teachers v. Bordonali, 2010 LNONCTD 14; Ontario College of Teachers v. Lowrie, 2015 LNONCTD 29; Ontario College of Teachers v. Woltman, 2015 LNONCTD 43; and Ontario College of Teachers v. Woltman, 2015 LNONCTD 44. College Counsel submitted that although these cases were not directly on point, they dealt with inappropriate language or teaching techniques, or they involved inappropriate interactions with colleagues and administrators and, in all cases, publication with name was ordered.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case and noted that the Committee has the discretion to order publication with or without the name of the Member.

Member’s Counsel submitted that through the Joint Submission on Penalty the Member accepts responsibility for his actions, and that the physical conduct engaged in by the Member was not sexualized conduct. Further, Member’s Counsel indicated that the Member had had a successful career and had never previously appeared before the Committee and had no intention of returning to the teaching profession.

Member’s Counsel referred the Committee to five cases: Ontario College of Teachers v. Reist, 2014 LNONCTD 60; Ontario College of Teachers v. Hill, 2012 LNONCTD 30; Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17; Ontario College of Teachers v. Musial, 2009 LNONCTD 9; and, Ontario College of Teachers v. Hyde, 2009 LNONCTD 27. According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel distinguished the cases submitted by College Counsel on the basis that the conduct in those cases was more serious than that of the Member.

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 disgraceful, dishonourable and unprofessional conduct warrants a reprimand by his peers. 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 accepts that a two-month suspension is appropriate in this case, given the nature and severity of the Member’s misconduct. Both parties agreed to this term. The suspension will serve as a specific deterrent to the Member. It will also serve as a general deterrent in that it conveys to other members of the profession and to the public that serious misconduct will attract serious consequences. Members of the teaching profession are expected to respect their professional obligations and to maintain respectful teacher/student boundaries. They face serious consequences when they fail to do so. The Member has clearly breached his professional obligations and the Committee’s order must reflect the severity of the breach.

The Committee finds that the courses of instruction regarding appropriate boundaries and boundary issues will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students and colleagues.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies 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: November 25, 2015

Marie-Claude Yaacov, Chair

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel