Ontario College of Teachers v. Gordon, 2015 ONOCT 31

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gordon, 2015 ONOCT 31

Date: 2015-06-28

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

John Alexander Spahich Gordon, OCT, a member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair

Irene Dembek, OCT

Marie-Claude Yaacov

BETWEEN: ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Law Clerk

– and – )

JOHN ALEXANDER SPAHICH GORDON ) Mandy Wojcik,

(CERTIFICATE #477629) ) Sack Goldblatt Mitchell LLP, ) for John Alexander Spahich Gordon

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: June 19, 2015

DECISION, REASONS FOR DECISION AND ORDERS

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

A Notice of Hearing (Exhibit 1) dated June 19, 2013 was served on John Alexander Spahich Gordon (the “Member”), requesting his presence on July 10, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for June 19, 2015.

The Member was in attendance for the hearing.

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 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 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)(c) 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).

At the hearing on June 19, 2015, Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing be withdrawn. The Committee granted the request.

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 as follows:

1. John Alexander Spahich Gordon is a member in good standing 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.

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

3. In or around September of 2008, during a Grade [XXX] class, a student asked the Member a question about the holocaust and about swastikas. It is alleged that the Member responded by telling the [XXX] class that while teaching at a former school where there were a lot of Jewish students, he had arranged the desks in the classroom in the shape of swastika without the students’ knowledge and that the students did not notice this when they came in to the classroom.

4. As a result of its investigation into the alleged comments described in paragraph 3 above, the Board found that the Member’s comments constituted professional misconduct and sent the Member a letter of reprimand to be placed in his file for three years. Attached to Exhibit 2 at Tab “B” is a copy of the letter dated October 29, 2008 from the Board to the Member. The time period was later reduced to one year after the Member’s Federation met with the School Board.

5. On or about April 2, 2009, the Member said to the class, after a Grade [XXX] female student, Student No. 1, who was eating a lollipop left the classroom, words to the effect that: "That's the only thing her boyfriend will ever like about her, that she can suck on things for a long time". If the Member were to testify, he would say that he does not recall his exact words, but did not intend them to be sexual. He acknowledges in retrospect that they were inappropriate.

6. The Member used the term, "giving head” while speaking to Grade [XXX] boys. If the Member were to testify, he would say that he did so in the context of a discussion about [XXX], the appropriate way to head a ball, and as the [XXX].

7. The Member teased Student No. 2, who was short in stature, and told him that, "There should be a sign on the blackboard indicating that you should be a certain height" in reference to Student No. 2’s height. If the Member were to testify, he would say that the teasing was intended to be friendly rather than hurtful.

8. The Member mimicked Student No. 3, who had a speech impediment, and told him that, "No wonder you get your [XXX] answers wrong, one point, tw..tw..tw..two" in reference to Student No. 3’s stuttering.

9. The Member had an argument with Student No. 4, a female student, when she disagreed that a quiz was different than a test.

10. The Member showed videos that were not approved by the Board during class and that the Board deemed to be inappropriate. The characters in the videos used racial slurs and other offensive language.

11. The Member made negative comments about the vice-principal in the presence of students.

12. On or about July 21, 2009, the Board sent the Member a letter regarding the result of its investigation into his conduct. Attached to Exhibit 2 at Tab “C” is a copy of the letter dated July 21, 2009 from the Board to the Member.

13. On or about September 1, 2009, the Board notified the Member that his employment with the Board was terminated. Attached to Exhibit 2 at Tab “D” is a copy of the letter dated September 1, 2009 from the Board to the Member. A grievance was filed by the Member’s Federation and has been placed in abeyance.

14. On June 7, 2010, the Member completed a course of instruction on professional boundaries, ethics and professionalism in Education, through the University of North Florida. A copy of the certificate confirming successful completion is attached to Exhibit 2 at Tab “E”.

GUILTY PLEA

15. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 14 above (the “Admitted Facts”).

16. 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(7.2), 1(15), 1(18) and 1(19).

17. 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 his counsel and Counsel for the College with respect to the penalty proposed in this document 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.

18. In light of the Admitted Facts 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

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, 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, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 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 14 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 finds, that the Admitted Facts constitute professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19). The Committee accepts the Member’s guilty plea.

On more than one occasion in 2008 and 2009, the Member made inappropriate, offensive and demeaning comments to students in his Grade [XXX] and Grade [XXX] classes. Specifically, the facts admitted to by the Member set out that: in one incident, it is alleged that the Member advised his class that while teaching at another school, he arranged the desks in his classroom in the shape of a swastika. The Member further informed his class that his former school had many Jewish students. According to an investigation conducted by the Board, students and staff independently reported being witness to the comments made by the Member (Exhibit 2, Tab “B”). As a result of these comments, the Board gave the Member a written reprimand that was placed in his file for one year.

Despite receiving the reprimand, the Member’s pattern of inappropriate behaviour continued. On two separate occasions, the Member made disparaging comments which had sexual overtones. Although the Member says that he did not intend for the comments to be sexual in nature, the Committee finds it troubling that the Member was unable to determine beforehand that making comments in the presence of students such as “that’s the only thing her boyfriend will ever like about her, that she can suck on things for a long time” and “giving head” was extremely inappropriate and may have been easily interpreted by the students as being sexual.

Furthermore, the Member made insulting comments regarding the physical stature of one student and the speech impediment of another student. He also made negative comments about the vice-principal in the presence of students and showed unapproved and unacceptable videos to his class that contained sexual and racial themes and other offensive language (Exhibit 2, Tab “C”).

The Committee finds the Member’s conduct to be unbecoming a member and considers this type of behaviour to be disgraceful, dishonourable and unprofessional. The Member crossed the professional and ethical teaching boundaries governed by the College, and clearly demonstrated poor judgment.

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) within 60 days of the date of the Committee’s Order, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding boundary violations and sensitivity training;

(b) within 30 days of his completion of the courses 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, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and;

(ii) the Member has successfully completed the courses.

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

Counsel for the College submitted that publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession and the public. Members of the profession do not want their name published since it can be embarrassing and disconcerting to know that colleagues will read about the matter in the College’s official publication, Professionally speaking/Pour parler profession. Counsel for the College further submitted 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.

College Counsel referred the Committee to two cases involving inappropriate comments made by a member. Counsel for the College submitted 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 necessary in this case. The reprimand will serve as a specific deterrent to the Member and the recording of the fact of the reprimand on the Register will serve as a general deterrent to the public and the teaching profession. Recording the fact of the reprimand on the Register also fulfills the goals of transparency and accountability as the public and any potential future employers of the Member will be privy to this information. As such, Counsel for the Member stated that the deterrence aspect of the penalty can be satisfied without publishing the Member’s name in the College’s official publication.

Counsel for the Member submitted that although the Member has applied for numerous teaching positions, he has not found a full-time permanent position, and is currently only working two days per week at a Community College. According to Member’s Counsel, publication with name would cause harm to the Member as he attempts to re-establish himself in the teaching community.

Counsel for the Member referred the Committee to one case where the Committee determined that publication without name was appropriate in the circumstances and submitted that that case was almost identical to the Member’s case, as it also involved a member who made inappropriate and insensitive comments to students and colleagues. Counsel for the Member urged the Committee to consider the Member’s privacy interests as he is attempting to find full-time employment.

Counsel for the Member further submitted that the cases submitted by Counsel for the College were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Reply Submissions of College Counsel

In reply, Counsel for the College submitted that the case presented by Counsel for the Member was distinguishable because none of the comments made by the member in that case were sexual in nature. Accordingly, the Committee should not rely on that case.

College Counsel further noted that the submissions of Member’s Counsel with respect to the impact that publishing the Member’s name would have on his ability to obtain full-time employment were speculative and were unsupported by any evidence.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register.

2. The Registrar is directed 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) Within 60 days of the date of the Discipline Committee’s Order, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding boundary violations and sensitivity training;

(b) Within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course providers 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 Orders of the Discipline Committee; and

(ii) the Member has successfully completed the courses.

4. There shall be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member. Therefore, the Committee accepted the proposed penalty presented by the parties.

The Committee finds that the Member’s repeated pattern of inappropriate conduct, despite warnings from the Board, warrants a reprimand by his peers. This will allow the College to directly address its concerns with the Member and will serve as a specific deterrent.

The courses of instruction regarding boundary violations and sensitivity training will assist in the rehabilitation of the Member. The rehabilitation and re-education of the Member in these matters will allow him to understand the conduct that is required of him as a teacher in order that he may interact with students appropriately in the future.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is necessary. 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 own actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, the transparency in publishing with the Member’s name reassures the public that the profession 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: June 28, 2015

Vicki Shannon, OCT, Chair

Chair, Discipline Panel

______________________________ Irene Dembek, OCT

Member, Discipline Panel

Marie-Claude Yaacov, OCT

Member, Discipline Panel