Ontario College of Teachers v Grogan, 2015 ONOCT 35

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Grogan, 2015 ONOCT 35

Date: 2015-03-13

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

AND IN THE MATTER OF a discipline proceeding against Angela Anita Grogan, OCT, a member of the Ontario College of Teachers.

PANEL: Pauline Smart, Chair Hanno Weinberger, OCT

BETWEEN: ) Shane D’Souza,

) McCarthy Tétrault LLP,

) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk

-and- )

) Heather Alden,

) Ontario Secondary School Teachers’

ANGELA ANITA GROGAN ) Federation,

(CERTIFICATE # 291737) ) for Angela Anita Grogan

) Marc Spector & Julie Maciura,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: November 1, 12, 13, 15,

) December 2, 2013; January 13,

) April 1, 2, October 17, 2014

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 1, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated November 23, 2011, was served on Angela Anita Grogan (the “Member”), requesting her presence on December 13, 2011 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on November 1, 2013. The proceedings continued on November 12, 13, and 15, 2014, December 2, 2013, January 13, 2014, and April 1-2, 2014, and concluded on October 17, 2014.

The Member was in attendance throughout the hearing.

At the time of the continuation of the hearing on October 17, 2014, the original Committee had been reduced by one member. Pauline Smart and Hanno Weinberger remained on the Committee and heard the remaining testimony and submissions of counsel. Monika Ferenczy, who was a member of the original Committee, had tendered her resignation from Council and from the Discipline Committee prior to the resumption of the hearing on October 17, 2014. Pursuant to section 4.4(1) of the Statutory Powers Procedure Act, the remaining members of the Committee were able to hear the evidence, receive submissions and continue with the hearing.

OVERVIEW

These proceedings arose as a result of several incidents involving the Member during the 2008-2009 school year, while she was a teacher in the [XXX] [XXX] program (the “Program”) at [XXX] (the “School”). The Member was involved in three incidents with her colleague, Alan Avery.

First, the Member is alleged to have called Mr. Avery a liar in front of students and staff at the School (the “liar incident”). Second, the Member was alleged to have falsely reported to the School administration that Mr. Avery physically abused a [XXX]-year-old, [XXX], student in the Program (“Student #1”) by stepping on her toes (the “toes incident”). Third, the Member was alleged to have falsely reported that Mr. Avery inappropriately touched Student #1 by stroking her hair and touching her shoulder (the “inappropriate touching incident”).

The Member had also accused Mr. Avery of taking Student #1 out of [XXX] class early, returning to his classroom with her alone, and closing the door behind them (the “[XXX] incident”). The Notice of Hearing, however, makes no mention of the [XXX] incident.

Prior to these proceedings, Mr. Avery filed a workplace harassment complaint against the Member with the Toronto District School Board (the “Board”), alleging that she had harassed him by making false allegations against him. The Board determined that the Member had harassed Mr. Avery.

The Committee’s task is to determine whether the facts giving rise to the allegations, set out below, have been proven on a balance of probabilities, and if so, whether they give rise to a finding of professional misconduct. For the reasons set out below, the Committee has determined that the Member is guilty of professional misconduct.

THE ALLEGATIONS

At the outset of the hearing, Counsel for the College presented a Notice of Hearing dated November 23, 2011. The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Angela Anita Grogan is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act 1996 (the “Act “) in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsections 264(1)(c) and (d) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);

(c) she 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Angela Anita Grogan is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board and taught at [XXX], in Scarborough, Ontario.

3. Alan Ross Avery, OCT is a member of the Ontario College of Teachers. At all material times, Mr. Avery was also a teacher at the School.

4. In or about the month of October 2008, while having a discussion about parents’ night, the Member called Mr. Avery a liar in front of students and staff at the School.

5. In or about the month of October 2008, the Member falsely reported to the School’s administrators that Mr. Avery stood on the toes of a [XXX] [XXX] [XXX]-year-old female student, Student #1, and did not allow Student #1 to get out of her chair in the classroom.

6. On or about March 25, 2009, the Member falsely reported to the School administrators that she had, on or about March 11, 2009, observed Mr. Avery stroking Student #1’s hair and touching Student #1 on her shoulder, at the School.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

EVIDENCE OF THE COLLEGE

The College called 11 witnesses, including School administrators, Program teachers, Educational

Assistants (“EAs”) and a Board representative. The witnesses testified with the help of a diagram

of the School’s layout (see Exhibit 3).

Testimony of Mr. Moura

During the 2008-2009 school year, Manny Moura (“Mr. Moura”) was one of two vice-principals at the School. At the hearing, Mr. Moura testified about the complaints that he received from staff and the actions that he took in response to these complaints.

The Liar Incident

Mr. Moura testified that in October 2008, Mr. Avery approached the School principal, Patricia Hodgins, and reported that the Member had called him a liar in the presence of staff and students. Mr. Moura and Principal Hodgins then met with the Member and told her that Mr. Avery wanted her to apologize. The Member refused to apologize, stating that Mr. Avery was a liar.

The Toes Incident

Later that month, on October 14, 2008, Mr. Moura was approached by the Member, who reported that on October 2, 2008, Mr. Avery had stepped on Student #1’s toes while she was sleeping in a chair in his classroom. During this same meeting, the Member told Mr. Moura that she had called Mr. Avery a liar because he had told a parent that she, the Member, was responsible for the lack of homework in the Program.

Mr. Moura stated that he took the Member’s allegation of physical abuse seriously and documented her concerns (see Exhibits 8, 14 and 19). He investigated the matter by speaking to Ms. Bowman, an EA in Mr. Avery’s classroom. Ms. Bowman told Mr. Moura that she had never witnessed the Member physically abusing any student in his care.

Mr. Moura then spoke to Mr. Avery about the allegation, and the teacher denied ever having stepped on Student #1’s toes. As there was no evidence to support the Member’s allegation, Mr. Moura informed the Member that her allegation had not been substantiated. Mr. Moura testified that the School did not inform Student #1’s family of the investigation because it believed that the Member’s allegation was unfounded.

During cross-examination, Mr. Moura acknowledged that there could have been physical indicators of abuse on Student #1’s body and that he could have asked Student #1’s parents if they had observed any bruising on their child. The vice-principal stated that he did not feel such measures were necessary since his interviews had not substantiated the Member’s claim.

The Inappropriate Touching Incident

Mr. Moura testified that on March 25, 2009, the Member reported to him that she had seen Mr. Avery engaging in inappropriate behaviour with Student #1 on March 11, 2009, at approximately 1:45 p.m. The Member stated that she had seen Mr. Avery stroke Student #1’s hair and rub her shoulders in the [XXX] at the end of the [XXX]. The Member added that the EAs were aware of Mr. Avery’s inappropriate behaviour and questioned why they had failed to report such conduct.

After this meeting with the Member, Mr. Moura discussed the matter with Principal Hodgins, and they decided to investigate the matter by reviewing the School’s video surveillance footage and interviewing Program staff. Mr. Moura and the School’s other vice-principal, Mr. Lopes, worked together to look at the March 11, 2009 video footage of the [XXX] and [XXX]. They concluded that Mr. Avery had not been in the School at 1:45 p.m. as the Member had claimed, given that the video footage showed him leaving the building at around 1:15 p.m. and did not show him returning at any point during the school day. Mr. Moura and Mr. Lopes saved a copy of this footage as evidence (see Exhibit 13).

Mr. Moura also spoke to EA Ms. Bowman about the Member’s allegation against Mr. Avery, and Ms. Bowman told Mr. Moura that she had not witnessed Mr. Avery exhibiting any inappropriate behaviour. Mr. Moura made notes of what he had seen in the video footage and what he had heard from Ms. Bowman (see Exhibit 9).

Mr. Moura stated that on March 27, 2009, he and Principal Hodgins met with the Member and informed her that they had not found any evidence to support her allegations regarding Mr. Avery. The Member also informed Mr. Moura and Principal Hodgins that Mr. Avery had repeatedly taken Student #1 out of [XXX] class early and that the window on his classroom door was completely [XXX]. The Member indicated hearing Ms. Bowman say, “Why is he doing that?” in reference to Mr. Avery removing Student #1 from the [XXX]. Mr. Moura and Principal Hodgins asked for the specific dates and times of these incidents, but the Member was unable to provide this information.

Mr. Moura testified that he and Principal Hodgins then investigated the Member’s allegations by speaking to different Program staff members. They interviewed Mr. Stather and the EA in his classroom, Ms. Preston. They also spoke to Program teacher Ms. Glazier and the EAs in Mr. Avery’s classroom, Ms. Bowman and Mr. Farrington. These staff members stated that they had not witnessed Mr. Avery being inappropriate with any students. Mr. Stather reported seeing Mr. Avery alone with Student #1 or other students on a few occasions, but he did not feel that anything inappropriate was happening in Mr. Avery’s classroom. Mr. Stather did, however, express concerns about the fact that the window on Mr. Avery’s classroom door was [XXX], but this was the first time the teacher had raised the issue with Mr. Moura.

During cross-examination, Mr. Moura stated that he did not recall Mr. Stather complaining to him that Mr. Avery often left [XXX] class early which put Mr. Stather in the position of having to look after his students. Mr. Moura stated that even if Mr. Stather had spoken to him about this issue, it would not have raised any red flags. Multiple teachers were present during [XXX], and Program teachers would often watch each other’s students if one of their colleagues needed to get supplies for a lesson. Mr. Moura also did not remember Ms. Preston telling him, during the investigative interviews, that she had noticed Student #1 exhibiting strange sexual behaviours. Mr. Moura denied ever calling Mr. Avery a “creep” when speaking to Mr. Stather and Ms. Preston.

Mr. Moura testified that he and Principal Hodgins looked at the School’s video surveillance footage as part of their investigation. They reviewed footage from different security cameras recording the long path between the [XXX] and Mr. Avery’s classroom but found no evidence that Mr. Avery had acted inappropriately toward Student #1.

Mr. Moura and Principal Hodgins did not inform Student #1’s parents of their investigation as the Member’s allegations were found to be unsubstantiated. The vice-principal and principal did, however, meet with the Member once again to present their findings.

Video Surveillance Footage

Mr. Moura testified that he and Principal Hodgins had intended to save the video surveillance footage that they had viewed in relation to the inappropriate touching incident allegation, but when he went back to save the watched footage, he found that it had already been overwritten. The only portion of the video that was saved was the footage of Mr. Avery leaving the School at 1:15 p.m. on March 11, 2009.

During cross-examination, Mr. Moura was questioned regarding his knowledge of an incident during which a School safety monitor, Mr. Canam, showed the Member video surveillance footage in Mr. Lopes’ office. Mr. Moura indicated that Mr. Canam should not have shown the Member the video footage.

Relationship with the Member

During cross-examination, Mr. Moura disagreed with the assertion by Member’s Counsel that he thought the Member was a troublemaker. Mr. Moura testified that he had treated the Member fairly and equitably when he proceeded with an investigation into her allegations.

Testimony of Principal Hodgins

During the 2008-2009 school year, Ms. Hodgins was the principal at the School. She testified regarding allegations that the Member made against Mr. Avery and the actions that she took in response to these allegations.

The Toes Incident

Principal Hodgins testified that in October 2008, the Member reported seeing Mr. Avery step on Student #1’s toes. Principal Hodgins found this allegation to be very serious and asked Mr. Avery for his version of events. Mr. Avery vehemently denied stepping on Student #1’s toes, and Principal Hodgins found the allegation to be implausible since there had been no indication from the EAs that Student #1 was suffering or that her behaviour had changed in any way. As such, Principal Hodgins did not feel the need to report the allegation to Student #1’s parents.

The Inappropriate Touching Incident

In March 2009, the Member reported seeing Mr. Avery make inappropriate physical contact with Student #1 on March 11, 2009 at approximately 1:45 p.m. Principal Hodgins worked with Mr. Moura and Mr. Lopes to investigate the allegation. Mr. Moura and Mr. Lopes checked the School’s video surveillance footage of the [XXX] on March 11, 2009 and found that Mr. Avery had actually left the building that day at around 1:15 p.m. The School administrators also met with Mr. Avery to ask him about the allegation of inappropriate physical contact, which Mr. Avery denied.

Principal Hodgins and Mr. Moura met with the Member and told her that there was no evidence to support the allegation she had made. At this point, the Member told them that Mr. Avery had repeatedly taken Student #1 out of [XXX] class early. The Member stated that Ms. Bowman had witnessed this happening and had wondered aloud why Mr. Avery was leaving [XXX] period with Student #1.

Principal Hodgins and Mr. Moura conducted interviews with Program teachers and EAs but found no evidence of inappropriate behaviour on the part of Mr. Avery. While Mr. Stather did indicate seeing Mr. Avery walking down the hall with Student #1 after [XXX] class, he was vague and did not provide any specific details. Principal Hodgins also checked the School’s video surveillance footage but never saw Mr. Avery escorting Student #1 out of [XXX] class early. Principal Hodgins subsequently created a summary of their investigation and findings (see Exhibit 10).

Principal Hodgins testified that she and Mr. Moura met with the Member and once again told her that her claims had not been substantiated. The Member was not satisfied and stated that she would be reporting the matter to outside authorities (see Exhibits 11 and 12). At this point, Principal Hodgins and Mr. Moura decided to try to save the video footage that they had watched, but the part that they wanted to save had already been overwritten by new footage.

The principal testified that she did not inform Student #1’s parents about the Member’s allegations as she did not feel it was fair to the staff members involved to do so, given that the allegations had not been substantiated.

Principal Hodgins did, however, send a summary of their investigation to the Board (see Exhibit 20).

Member’s Suspension

Principal Hodgins indicated that at some point during the 2008-2009 school year, Mr. Avery filed a workplace harassment complaint against the Member, with the Board. Principal Hodgins was subsequently advised by the Board to put the Member on suspension with pay.

Testimony of Mr. Lopes

During the 2008-2009 school year, Mr. Lopes was one of the vice-principals at the School. He testified regarding the administration’s investigation into allegations that the Member had made against Mr. Avery.

During the 2008-2009 school year, the equipment for viewing the School’s video surveillance footage was located in Mr. Lopes’ office. There were two ways to view the video footage: from the vice-principal’s computer or from monitors inside a cabinet in the vice-principal’s office. Mr. Lopes testified that his desk was positioned so that the back of his computer monitor was facing the wall, and his computer was protected with a password that only he knew.

Mr. Lopes testified that on March 13, 2009, Mr. Canam, a safety monitor at the School, told him that he had gone into Mr. Lopes’ office to show the Member the School’s video surveillance footage as the Member had wanted to see if a student was unattended in the [XXX] on March 11, 2009. The vice-principal then reviewed the March 11 footage himself in his office and only ever saw Ms. Bowman escort Student #1 to the bathroom.

A couple of weeks later, Mr. Lopes learned that the Member had reported seeing Mr. Avery make inappropriate physical contact with Student #1 in the [XXX] on March 11, 2009 at around 1:45 p.m. Principal Hodgins asked Mr. Lopes to review the School’s video surveillance footage to verify whether the Member’s allegation against Mr. Avery could be substantiated. As requested, Mr. Lopes watched the March 11 footage and once again only ever saw Ms. Bowman taking Student #1 to the bathroom.

During cross-examination, Mr. Lopes stated that he had no recollection of the Member approaching him to ask if she could view the School surveillance footage.

Testimony of Mr. Canam

During the 2008-2009 school year, Mr. Canam was a safety monitor at the School. In this role, Mr. Canam surveyed the hallways, made sure students were in class and assisted the police during investigations that required viewing the School’s video surveillance footage. Mr. Canam gave evidence about the security camera system at the School and testified about one instance where he viewed surveillance video footage with the Member.

Video Surveillance Footage

Mr. Canam explained that the security cameras in the School did not continuously record footage.

Rather, they were motion activated and began recording from the moment that movement was detected inside the School and on its premises. During the 2008-2009 school year, Mr. Canam had access to the School equipment for viewing surveillance footage, which was in Mr. Lopes’ office. Although Mr. Canam did not have the ability to erase footage, the surveillance footage would actually overwrite itself after a period of time. Mr. Canam specified that the more activity a camera captured, the faster the camera’s footage would be replaced by newer footage. The video footage of the inside of the School building would generally be overwritten by new footage within two to three weeks.

During cross-examination, Mr. Canam acknowledged that security cameras in the [XXX] had blind spots and might not have captured recessed parts of the [XXX], including [XXX].

Mr. Canam testified that on March 12, 2009, the Member asked to view the School’s video surveillance footage, stating that she wanted to see if Student #1 had been unattended in the [XXX] the day before at around 1:45 p.m. Mr. Canam brought the Member to Mr. Lopes’ office and showed her the video footage of the [XXX] on March 11, 2009 from 12:30 or 1:00 p.m. to 3:00 p.m. They watched the footage from the video monitors at the back of Mr. Lopes’ office for approximately 20 to 30 minutes, and the Member instructed Mr. Canam when she wanted the footage paused, fast-forwarded or rewound. They only ever saw Ms. Bowman escorting Student #1 to the bathroom. According to Mr. Canam, the Member then stated, “I must have been wrong,” before they left Mr. Lopes’ office after reviewing the footage.

Later in March 2009, Mr. Lopes asked Mr. Canam to prepare a written statement about what he had seen in the surveillance footage on March 12, 2009. Mr. Canam complied with the request (see Exhibit 4).

Testimony of Mr. Avery

During the 2008-2009 school year, Mr. Avery was a teacher in the School’s Program. He testified regarding his interactions with the Member, and the complaints that she made against him to School administration.

The Liar Incident

Mr. Avery stated that in October 2008, the Member came to his classroom one morning at the end of first period and spoke to him while standing in the doorway. At the time, students were exiting the room to prepare for their next class. The Member asked Mr. Avery if he had spoken to parents about the [XXX] program, and Mr. Avery responded that he had not discussed specifics of the [XXX] program with parents. Mr. Avery told the Member that when parents asked him about the [XXX] program during parents’ night at the School, he directed them to speak to the Member as she was responsible for this particular subject. The Member then called Mr. Avery a liar. Shocked that the Member would make such a remark, Mr. Avery asked her, “Are you calling me a liar?” The Member responded that she was in fact calling him a liar. The classroom door was open during this exchange, and staff and students were present to witness their dispute.

Mr. Avery reported the incident to the principal shortly thereafter (see Exhibit 29).

The Toes Incident

Shortly after his dispute with the Member, Mr. Avery was called down to the principal’s office and learned that the Member had accused him of stepping on Student #1’s toes. Mr. Avery testified that he never stepped on Student #1’s toes and stated that he has never physically abused any of his students.

The Inappropriate Touching Incident

Towards the end of March 2009, Mr. Avery was called into the principal’s office once again. Principal Hodgins informed Mr. Avery that the Member had reported seeing him stroke Student #1’s hair and shoulder at the School on March 11, 2009 at approximately 1:45 p.m. Mr. Avery testified, however, that on March 11, he had left the School at approximately 1:15 p.m. to go to an appointment. During cross-examination, Mr. Avery admitted that he had not signed out with the office before leaving school that day, despite this being the School’s policy (see Exhibit 18).

When Member’s Counsel suggested that Mr. Avery had engaged in inappropriate physical contact with Student #1 in an [XXX] in the [XXX], Mr. Avery challenged the rationality of this claim. Mr. Avery stated that since he and Student #1 both had larger physical frames, they would have been visible to others even when standing in an [XXX].

When asked by Member’s Counsel whether Student #1 had ever tried to kiss him, Mr. Avery denied that this had ever happened.

The [XXX] Incident

When asked whether he had taken Student #1 out of [XXX] class early during the 2008-2009 school year to escort her back to his classroom, Mr. Avery stated that he could not recall doing so. He stated that it would be difficult to bring Student #1 from the [XXX] to his classroom, given her [XXX], [XXX] issues and general resistance to moving somewhere she did not want to go.

Mr. Avery’s response to Member’s allegations against him

In March 2009, Mr. Avery wrote Principal Hodgins a letter summarizing his concerns about the Member’s conduct towards him and the allegations that she had made against him (see Exhibit 24). Subsequently, in April 2009, Mr. Avery filed a workplace harassment claim against the Member with the Board’s human rights office (see Exhibits 25, 26 and 49). The Board investigated the claim and interviewed Mr. Avery as part of this investigation (see Exhibit 27). The Board ultimately determined that Mr. Avery had, in fact, been harassed. In April 2010, Mr. Avery also filed a complaint against the Member with the College (see Exhibit 28).

Mr. Avery testified that the Member’s allegations have placed a tremendous strain on him.

Testimony of Ms. Glazier

During the 2008-2009 school year, Ms. Glazier was a teacher in the Program at the School. Ms. Glazier gave testimony regarding her interactions with Mr. Avery and the Member.

Ms. Glazier described the [XXX] at the School, stating that it was not unusual to see the classroom door windows [XXX] from time to time. Door windows were [XXX] during lockdown drills, and some teachers would also decorate their windows for special occasions or would put [XXX] over their window when showing a movie to their class. She could not recall any complaints during the 2008-2009 school year about Mr. Avery’s window being [XXX].

The Liar Incident

Ms. Glazier testified that in October 2008, she heard the Member call Mr. Avery a liar. On this occasion, Ms. Glazier was in her classroom toward the end of first period, and EAs were helping her students get ready for [XXX] class in the hall. Ms. Glazier poked her head out to check on the students and saw the Member walk up to Mr. Avery’s doorway. When Ms. Glazier went back to her classroom, she heard the Member raise her voice and call Mr. Avery a liar. Mr. Avery’s voice was raised too, but Ms. Glazier was unable to make out what he was saying. She was, however, able to hear the Member respond, “Yes, that’s right. You’re a liar.”

The Toes Incident

Ms. Glazier stated that she had never witnessed Mr. Avery physically abuse any student.

The Inappropriate Touching Incident

Ms. Glazier addressed the Member’s claim that Mr. Avery had engaged in inappropriate physical contact with Student #1 on March 11, 2009 at around 1:45 p.m. She testified that Mr. Avery was not in the School building at this time.

On March 11, 2009, Mr. Avery’s class was in Ms. Glazier’s classroom during third period for a special program. Ms. Glazier could see that Mr. Avery did not look well and told him to go home. She offered to cover his class and told him that it would not be an issue if he left since it was exam week. Mr. Avery accepted the offer and left the School at around 1:10 or 1:15 p.m. Ms. Glazier did not see Mr. Avery come back to school for the rest of the day.

Ms. Glazier also indicated having no recollection of seeing Mr. Avery take Student #1 out of [XXX] class early during the 2008-2009 school year.

Testimony of Mr. Farrington

During the 2008-2009 school year, Mr. Farrington worked as an EA in the School’s Program and would spend part of his time in Mr. Avery’s classroom.

Mr. Farrington testified that the windows on the classroom doors at the School were often [XXX] to prevent students from getting distracted by passersby in the hallway. They were also [XXX] during lockdown drills at the school.

With respect to the Member’s claim that Mr. Avery made inappropriate physical contact with Student #1 on March 11, 2009 at around 1:45 p.m., Mr. Farrington testified that Mr. Avery was not at school during this time as he had an appointment.

Mr. Farrington could not recall seeing Mr. Avery leave [XXX] class early with Student #1 or spending time alone with her in his classroom during the 2008-2009 school year. Mr. Farrington testified that he never observed any inappropriate contact between Mr. Avery and a student.

Testimony of Ms. Preston

During the 2008-2009 school year, Ms. Preston was an EA in Mr. Stather’s [XXX] classroom.

Ms. Preston testified that she never observed Mr. Avery engage in any inappropriate physical or sexual contact with Student #1 or any other student. While Mr. Avery attended [XXX] class the majority of the time, Ms. Preston did recall seeing him alone in his classroom with Student #1 during [XXX] period on one occasion. Ms. Preston did not think anything of Mr. Avery’s actions at the time. Student #1 could be stubborn and would often sit down on the floor and refuse to move, so Ms. Preston felt that there was no issue if Student #1 did not always attend [XXX] class.

Ms. Preston testified that Mr. Moura had approached her and Mr. Stather in their classroom one day to advise them that they might be questioned about certain allegations against Mr. Avery. However, Ms. Preston did not recall Mr. Moura calling Mr. Avery a “creep” during this conversation. Ms. Preston also denied having told Mr. Moura that she had noticed Student #1 making strange gestures and exhibiting sexual behaviour.

Testimony of Ms. Blackwell

During the 2008-2009 school year, Ms. Blackwell was an EA for the Program at the School and worked in Ms. Glazier’s classroom. Ms. Blackwell testified about the liar incident between the Member and Mr. Avery in October 2008.

At the time of the incident, Ms. Blackwell was in the hallway with students when she heard the Member say to Mr. Avery, “You’re a liar”. Mr. Avery then asked her, “Are you calling me a liar?” Ms. Blackwell stated that the Member was standing in the hallway during the conversation, while Mr. Avery was in his classroom.

Testimony of Ms. Bowman

During the 2008-2009 school year, Ms. Bowman was an EA in Mr. Avery’s classroom. Ms. Bowman testified about her observations of Mr. Avery, Ms. Grogan and Student #1.

Ms. Bowman described the [XXX], stating that teachers would sometimes cover their classroom door windows with [XXX] [XXX] so that their students would not get distracted by activity in the hallways.

Ms. Bowman worked directly with Student #1 during the 2008-2009 school year. Ms. Bowman stated that Student #1 had a habit of dropping down to the floor and not moving when she did not feel like going to a particular place. As she had [XXX], it would sometimes take two or three people to move her in these instances.

The Liar Incident

Ms. Bowman testified that in October 2008, she and some students were standing in the hallway by the lockers outside of Mr. Avery’s classroom one morning when she overheard a dispute between Mr. Avery and the Member. Their voices were raised, and Ms. Bowman heard Mr. Avery say, “So, you’re calling me a liar?” to which the Member replied, “Yes, I’m calling you a liar”. After this exchange, the Member walked out of the room.

The Toes Incident

Ms. Bowman stated that she never witnessed Mr. Avery step on Student #1’s toes or physically abuse any student.

The Inappropriate Touching Incident

At one point during the 2008-2009 school year, Ms. Bowman was interviewed by Mr. Moura regarding an allegation made by the Member that Mr. Avery had engaged in inappropriate physical contact with Student #1 on March 11, 2009 at approximately 1:45 p.m. Ms. Bowman told Mr. Moura that Mr. Avery had actually left the School between 1:00 and 1:30 p.m. on March 11, 2009.

Ms. Bowman also testified that she had not seen Mr. Avery take Student #1 out of [XXX] class early during the 2008-2009 school year. Ms. Bowman stated that she would have noticed this happening because it was normally the EA who would remove a student from class when the need arose, while the teacher remained with the rest of the students. Furthermore, Ms. Bowman stated that if she had witnessed inappropriate behaviour, she would have reported it to School administration.

During cross-examination, Ms. Bowman denied that she and Ms. Kunabalasingam, a co-op student in the Member’s classroom, had both witnessed Student #1 trying to kiss Mr. Avery.

School Investigation

Ms. Bowman was interviewed by School administration as part of an investigation into the Member’s allegations against Mr. Avery. While she was being interviewed, Ms. Bowman learned that the Member had told the principal and vice-principal that Ms. Bowman had witnessed Mr. Avery acting inappropriately towards students but had failed to report the matter to anyone. Upset that her character was being called into question, Ms. Bowman filed a workplace harassment complaint (see Exhibit 5) against the Member with the Board’s human rights office. The Board investigated Ms. Bowman’s complaint and found that she had, in fact, been harassed by the Member (see Exhibit 6).

Testimony of Mr. Tumminieri

During the 2008-2009 school year, Mr. Tumminieri was a superintendent for the Board. He gave evidence regarding the workplace harassment complaints that he received from Mr. Avery and Ms. Bowman regarding the Member.

Mr. Tumminieri testified that he investigated Mr. Avery and Ms. Bowman’s complaints by interviewing the complainants, the Member and the witnesses that they named. These interviewees included: Mr. Farrington, Ms. Preston, Mr. Stather, Principal Hodgins, Mr. Moura, Mr. Lopes, Mr. Canam, Ms. Mitchell (the parent who had confronted the Member about the Program’s lack of homework, which gave rise to the liar incident), Student #2 (who attended the School and assisted students in the Program), and the Member. Mr. Tumminieri gave evidence with the help of notes that he made and received during his investigation (see Exhibits 30-44 and 50-52).

Mr. Tumminieri stated that he prepared a preliminary investigation report of his findings and provided Mr. Avery, Ms. Bowman and the Member with a copy of this document. The Member sent in a response to the preliminary report, stating that the document inaccurately stated that the Member saw Mr. Avery engage in inappropriate physical contact with Student #1 in the [XXX], when they were actually outside of a classroom at the time of the incident. Although Mr. Tumminieri was confident that the Member had consistently told him that the inappropriate conduct occurred in the [XXX], he described the incident in his final investigation report as an incident of physical contact between Mr. Avery and a student without referencing a specific location.

In December 2009, Mr. Tumminieri sent the final investigation reports (see Exhibits 45 and 46) to Mr. Avery, Ms. Bowman and the Member. In these reports, Mr. Tumminieri concluded that the Member had indeed harassed Mr. Avery and Ms. Bowman.

EVIDENCE OF THE MEMBER

Member’s Counsel called six witnesses, including the Member who testified on her own behalf.

Testimony of the Member

Since completing her Ontario teacher education program in 1983, the Member has worked in a number of different schools (see Exhibits 2, 53-56). During the 2008-2009 school year, the Member was a teacher in the Program at the School. She testified about her observations of Mr. Avery’s conduct toward Student #1 and gave her evidence with the help of her notes and agenda entries (see Exhibits 65-69, 71, 73-76, 82, 84 and 85).

The Program Department

The Member described the atmosphere within the Program, stating that there were certain teachers, EAs and hall monitors who would socialize frequently and formed a clique. Once Mr. Avery came to teach at the School, his classroom became the congregation area where the staff in this clique would prepare and eat breakfast in the mornings.

The Member was uncomfortable with the staff’s social activities, which, in her view, failed to involve the students. The Member chose not to participate in the socializing, and described feeling ostracized by her colleagues.

During the 2008-2009 school year, the Member held the role of [XXX] teacher in the Program department, meaning that she would go to different classrooms throughout the day to teach [XXX] so that the classroom teacher could have a period to prepare his or her lessons (see Exhibits 57-58).

Sometime in October 2008, the Member noticed that Mr. Avery’s classroom door window was completely [XXX] with [XXX] [XXX] [XXX]. Whenever the Member came into Mr. Avery’s classroom to teach [XXX], she would take the [XXX] down. However, when she came back the next day, the [XXX] [XXX] would be back up again.

The Liar Incident

The Member testified that in October 2008, she was confronted by Ms. Mitchell, a parent who was upset that her son was not benefiting from the Program and was not being assigned any homework. Ms. Mitchell stated that Mr. Avery had told her that the Member was responsible for the Program and its homework assignments. The Member managed to calm Ms. Mitchell down and explained to her that she was not responsible for the entire Program but that she could send home [XXX] work if this is what the parent wanted.

A few days later, the Member spoke to Mr. Avery about the false information he had provided to Ms. Mitchell. The Member went to Mr. Avery’s classroom at approximately 8:30 a.m., before the students had arrived for first period. When the Member asked if she could make an appointment to speak with him, Mr. Avery roared “NO” like a lion. The Member was taken aback by his reaction but went on to ask him why he had told Ms. Mitchell that she was responsible for the Program and homework assignments. At first, Mr. Avery stated that he did not tell Ms. Mitchell anything. A moment later, however, he raised his voice and declared that when he spoke to Ms. Mitchell, he did not tell her that the Member was responsible for homework assignments.

The Member felt that Mr. Avery’s story was inconsistent and questioned him saying, “Which is it? Did you speak to her or didn’t you speak to her?” At this point, the Member yelled, “Are you calling me a liar?” The Member raised her voice and responded that she was calling him a liar because he had initially stated that he had not spoken to Ms. Mitchell at all but then changed his story and indicated that he had indeed spoken to the parent.

At some point during this confrontation, the Member told Mr. Avery that she had seen him step on Student #1’s foot and that she was going to report this incident to the School administration. The Member then walked out of the classroom just in time to see Ms. Bowman outside the door with students.

During cross-examination, the Member acknowledged that while she had testified that the liar incident took place at 8:30 a.m., her letter of complaint to the School administration (Exhibit 70) indicated that it took place at approximately 8:40 a.m. The Member conceded that this time difference was significant as students would come down to their classrooms at 8:45 a.m.

The Toes Incident

The Member testified that shortly after her confrontation with Mr. Avery (the liar incident), she approached Mr. Moura and reported that Mr. Avery had stepped on Student #1’s toes. As a follow-up to her oral report, the Member sent a letter to Mr. Moura, Principal Hodgins and Mr. Avery about her concerns (see Exhibit 70), but Mr. Moura never responded to the Member.

The Member testified that, in October 2008, she witnessed Mr. Avery physically mistreating a student. The Member described the toes incident as follows. The Member was setting up for her [XXX] lesson in Mr. Avery’s classroom, while the students were in the bathroom. The only student left in the room was Student #1, who was sleeping in a chair with her feet extended, the heels of her feet on the ground and the top of her feet elevated off the ground. The Member was working with equipment and had her back turned to the door when she felt a presence behind her. When she turned her head, the Member could see Mr. Avery standing in front of Student #1 and using one of his feet to press down on her left foot. The Member indicated that Student #1 started to move because “you could see she felt the pressure”. At this point, Mr. Avery looked at the Member, walked to his desk and sat down for a moment before getting up again and walking out the door. After he left, the Member became emotional, feeling confused and not understanding what she had just seen.

During cross-examination, the Member admitted that she did not check Student #1 for bruises after the incident or ask other Program teachers if Student #1 exhibited signs of suffering. The Member further recognized that she did not immediately report the incident to the CAS or the police despite the fact that Mr. Avery’s alleged conduct constituted physical abuse.

The Member also acknowledged, during cross-examination, that she only notified the School administration that Mr. Avery had stepped on Student #1’s toes 12 days after the incident took place. The Member indicated that this delay was due to her feeling “frozen” and worried that School administration and staff would not support her, especially given that there were no other eyewitnesses to corroborate her story. The Member indicated that she first disclosed this incident to Mr. Moura after Mr. Avery told her that he was going to report her for calling him a liar.

Furthermore, the Member acknowledged that her letter of complaint to the School administration (Exhibit 70) referred to Mr. Avery stepping on Student #1’s foot with both his feet and not with one foot, as she had previously testified. The Member affirmed that Mr. Avery had only used one foot to press down on Student #1’s left foot and that her letter was inaccurate on this particular detail.

The [XXX] Incident

The Member testified that during the 2008-2009 school year, the students in the Program had [XXX] class during second period, which was the Member’s lesson preparation period. The Member would spend her preparation period in her office with her door open, facing the hallway. Around November 2008, on about six occasions, the Member witnessed Mr. Avery and Student #1 walking briskly down the hall back to Mr. Avery’s classroom during what was supposed to be their [XXX] period. They would go into Mr. Avery’s classroom and close the door behind them. The Member was surprised to see the student and teacher walking down the hall together in this manner, as Student #1 was not the kind of student who would do something that she did not want to do.

During cross-examination, the Member acknowledged that she had not documented any of these six instances in her agenda, though she had made agenda notes for many of the other incidents, meetings and conversations related to Mr. Avery’s conduct.

The Inappropriate Touching Incident

The Member testified that on March 11, 2009, she witnessed Mr. Avery make inappropriate physical contact with Student #1. On this date, the Member was teaching [XXX] in Mr. Avery’s classroom during third period when she stepped out into the hallway at approximately 1:45 p.m. to go back to her office and retrieve materials. The hall was generally empty since it was exam week at the School, but as the Member made her way down the hall, she saw Mr. Avery and Student #1 standing in an [XXX] near her office. They were standing very close and facing each other, with Student #1 positioned in the corner of the [XXX], her back to the wall (see Exhibits 59, 60). Mr. Avery was stroking Student #1’s hair and arm, and as the Member continued down the hall, Student #1 saw her and reacted by folding her arms, stomping her foot and turning to face the wall. The Member walked past them to her office, retrieved the materials she needed and walked back out into the hall. When the Member came back out, however, Mr. Avery and Student #1 were no longer in the [XXX]. The Member suspected that they had gone into Ms. Glazier’s classroom as the door to this room was open.

The next day, the Member wanted to confirm what she had witnessed, so she spoke to the office administrator and asked to look at the video surveillance footage from the previous day. The office administrator arranged for the safety monitor, Mr. Canam, to come down to the office, and Mr. Canam took the Member to Mr. Lopes’ office to view the footage. Mr. Canam went behind Mr. Lopes’ desk and used the vice-principal’s computer to access the surveillance footage. The Member stood across from Mr. Canam at the other end of Mr. Lopes’ desk and faced the back of the computer monitor, so she had to lean over to look at the screen where the footage was playing. Without disclosing what she had seen, the Member told Mr. Canam that she wished to view the [XXX] on March 11 from 12:30 p.m. until the end of the day. However, when she managed to lean over and look at the computer screen, she only saw the pattern of the [XXX]. When the Member clarified that she was not looking for the footage of the [XXX], Mr. Canam stated suddenly, “I shouldn’t be doing this” and told the Member that she should speak to Mr. Lopes about the video. The Member and Mr. Canam viewed the surveillance footage for less than five minutes.

The Member testified that she spoke to Mr. Lopes the following day and asked to see the video surveillance footage once again. She mentioned to Mr. Lopes that she had already come by to look at the tape the day before, and Mr. Lopes responded that he was aware of this.

Conversations with Staff regarding Mr. Avery

The Member testified that after her conversation with Mr. Lopes, she spoke to Mr. Stather and Ms. Preston and asked them if she was the only one who had concerns about Mr. Avery’s interactions with Student #1. Ms. Preston indicated that Mr. Avery had been taking Student #1 out of [XXX] class for no reason and taking her back to his classroom. Ms. Preston stated that she had asked Ms. Bowman, the EA in Mr. Avery’s classroom, why Mr. Avery was removing Student #1 from [XXX] class, but that Ms. Bowman did not know. Mr. Stather, for his part, told the Member that Mr. Avery would come to [XXX] class, drop off his students and then take Student #1 out of the [XXX], leaving Mr. Stather to look after the rest of his class. Mr. Stather stated that he had already spoken to administration about this issue, but that nothing had been done.

After speaking with other staff about Mr. Avery’s conduct, the Member reported what she had seen transpire between Mr. Avery and Student #1 in the [XXX]. On March 25, 2009, the Member disclosed the incident to Mr. Moura, and the vice-principal told her that he would speak to Principal Hodgins about the matter. When Mr. Moura did not follow up by the end of the school day, the Member sent him a note reminding him about her report (see Exhibits 72 and 86).

During cross-examination, the Member acknowledged that she did not report the inappropriate physical contact she had witnessed until a couple of weeks after the alleged incident took place.

The Member testified that on March 26, 2009, she met with Principal Hodgins and Mr. Moura about the allegation she had made regarding Mr. Avery. According to the Member, Principal Hodgins defended Mr. Avery aggressively and then challenged the Member, asking her why she had not spoken directly to Mr. Avery about the issue. During this meeting, the Member told the School administrators that Mr. Avery was taking Student #1 out of [XXX] class early and covering his classroom door window with [XXX].

The Member testified that on March 30, 2009, she was called in for another meeting with Principal Hodgins and Mr. Moura. The principal and vice-principal informed the Member that they had investigated her allegations against Mr. Avery and that no one else had reported seeing anything. The Member then told the administrators that she would be reporting the matter to the police. That same day, the Member went to the police station and reported Mr. Avery’s conduct (see Exhibit 83).

During cross-examination, the Member admitted that she did not notify the School administration that Mr. Avery was taking Student #1 out of [XXX] class early until about five months after the incidents, in March 2009. The Member stated that she had been hesitant to report the matter as she had previously been harassed by the School administration and had no voice within the Program department.

Member’s Suspension

On April 16, 2009, Principal Hodgins informed the Member that she was suspended. When the Member asked why she was being suspended, Principal Hodgins simply told her that she needed to pack her belongings and leave the School as quickly as possible.

During her suspension, the Member had a telephone conversation with a police officer. This officer told the Member that she had called the School and was informed by Principal Hodgins that the Member was a troublemaker and should be ignored. The Member documented this phone conversation (see Exhibit 77).

The Member testified that she quickly learned that her suspension was related to workplace harassment complaints filed against her by Mr. Avery and Ms. Bowman. Mr. Avery’s complaint was linked to the allegations that the Member had made against him, while Ms. Bowman’s claim alleged that the Member had told the School administration that she was aware of Mr. Avery’s misconduct but failed to report it. The Member testified, however, that she had never brought up Ms. Bowman’s name in her reports to Mr. Moura and Principal Hodgins.

The Member further testified that Mr. Tumminieri’s investigation was flawed. The Member received a preliminary investigation report from Mr. Tumminieri (see Exhibit 79) but found that the report was inaccurate in that Mr. Tumminieri had paraphrased certain statements, omitted certain details and asked leading questions during his interviews. The Member sent the Board a letter outlining her concerns about the preliminary investigation report (see Exhibits 47 and 48).

Difficulties with School Administration

The Member testified that she was harassed by School administration during the 2008-2009 school year. She explained that she felt mistreated by her colleague and the administration on several occasions, and that this mistreatment started before her suspension and continued during her absence from the School.

In response to what the Member perceived to be unfair treatment towards her on the part of the School and its administration, the Member ultimately filed a complaint against Mr. Moura and Principal Hodgins with the Board’s human rights office (see Exhibit 78). She also pursued a grievance against the School (see Exhibit 80).

The Member testified that despite having experienced great difficulty and anxiety since the events of the 2008-2009 school year, she stands by her decision to report the abuse that she had witnessed.

Testimony of Mr. Aslanidis

During the 2008-2009 school year, Mr. Aslanidis was an executive officer for the Ontario Secondary School Teachers’ Federation. In this role, he provided assistance and advice to secondary school teachers. At the hearing, Mr. Aslanidis testified about his communications with the Member.

Mr. Aslanidis stated that in December 2008, he received an email from the Member about the difficulties that she was experiencing with her colleagues and administrators (see Exhibit 89). In particular, the Member told Mr. Aslanidis that School administration was not adequately supporting her when she had issues with parents or concerns about Mr. Avery’s abusive behaviour. After Mr. Aslanidis advised the Member to report the abusive behaviour, the Member reported it to the School administration, the CAS and the police.

In April 2009, Mr. Aslanidis learned that the Board had suspended the Member with pay because of workplace harassment complaints filed against her by Mr. Avery and Ms. Bowman. Mr. Aslanidis later learned from the Member that the Board had determined that the harassment claims against her were founded. While the Board did not take any disciplinary action against the Member, Mr. Aslanidis testified that the Member felt mistreated at the School and he helped the Member file a human rights complaint against Mr. Moura and Principal Hodgins with the Board (see Exhibit 78). A few months later, Mr. Aslanidis filed a discrimination grievance against the Board on the Member’s behalf (see Exhibit 80).

During cross-examination, however, Mr. Aslanidis admitted that he did not have firsthand knowledge of the allegations in this matter.

Testimony of Mr. Stather

Mr. Stather has been a teacher since 1998 and works primarily in the field of [XXX] (see Exhibit 90). During the 2008-2009 school year, Mr. Stather taught the [XXX] class in the School’s Program. At the hearing, he testified about his observations of Mr. Avery’s behaviour and about the Program staff’s treatment of the Member. Mr. Stather gave his evidence with the help of his own notes and agenda entries of the events (see Exhibits 91-94 and 96).

The Program Department

Mr. Stather testified that in June 2008, he was hired to work at the School. He noted that certain Program staff members enjoyed socializing during and outside of school and formed a clique. During the summer before the 2008-2009 school year, Mr. Stather was invited to a staff social gathering at a restaurant. As the Member was not at this gathering, the other staff members complained about her, stating that she was uncooperative for refusing to cover for other teachers and share resources.

In September 2008, Mr. Stather officially started his teaching position in the [XXX] [XXX] classroom. While he left the window on his classroom door uncovered, Mr. Stather noticed that Mr. Avery’s classroom door window was permanently [XXX] with thick [XXX] [XXX] sometime after September.

In a department meeting during the 2008-2009 school year, Mr. Moura asked Mr. Stather to report on the Member’s attendance, as Mr. Moura wanted to know whether she was arriving to school on time (see Exhibit 91). Unsure about this request, Mr. Stather contacted his union for advice and was told that reporting on a colleague’s whereabouts was inappropriate. As such, Mr. Stather informed Mr. Moura that he would not be reporting on the Member.

The [XXX] Incident

Mr. Stather testified that in late September or early October 2008, all the Program students began taking [XXX] class together. The [XXX] classes were organized and run by other staff and student helpers, but the Program teachers were still expected to stay and supervise during this period. Mr. Avery and Ms. Glazier, however, only stayed for the entirety of two or three [XXX] classes before they started leaving early and having Mr. Stather supervise their students.

Mr. Stather testified that he raised this issue with Mr. Moura sometime in November 2008 but stated that the vice-principal simply brushed off the matter and did nothing to address the problem.

Mr. Stather testified that, overall, he saw Mr. Avery leave [XXX] class early on eight to ten occasions during the first semester and on 12 to 15 occasions during the second semester. Of the 12 to 15 instances during second semester, Mr. Avery left [XXX] class early with Student #1 three times. The first two times this happened, Mr. Stather did not see the teacher and student leaving [XXX] class but quickly noticed that they were both absent. The third time, Mr. Stather witnessed them leaving and followed them quietly down the hall, bringing the rest of his students with him. Mr. Stather saw Mr. Avery and Student #1 go into Mr. Avery’s classroom. Mr. Avery’s door was closed, and the door window was [XXX] with [XXX]. When Mr. Stather entered the classroom, he saw Mr. Avery sitting at his desk and Student #1 sitting on the couch. The lights were off, and no one else was in the room. Mr. Stather asked Mr. Avery if anything was wrong, and Mr. Avery responded that Student #1 was tired and wanted to rest.

Mr. Stather found it strange that Mr. Avery and Student #1 were leaving [XXX] period together, as EAs would usually escort students instead of teachers. Further, Student #1 generally did not like going from place to place and would often let her body flop down on the ground to resist moving somewhere.

Mr. Stather testified that sometime in March or April 2009, Student #1 began exhibiting strange sexualized behaviour. She would look at males or females and make sucking sounds with her mouth, and Mr. Stather also noticed, on a couple of occasions, that if a man came close to her, she would try to grab or make gestures towards the man’s crotch. Mr. Stather also overheard EAs discussing Student #1’s strange behaviour amongst themselves.

Mr. Stather testified that in March or April 2009, Mr. Moura approached him and Ms. Preston in his classroom and questioned them about whether they had seen Mr. Avery leaving [XXX] class early. Mr. Stather reminded the vice-principal how he had previously raised this very issue with him, and Ms. Preston told Mr. Moura about Student #1’s strange sexualized behaviour. Mr. Moura reacted by calling Mr. Avery a “creep”. A few days later, Mr. Moura approached Mr. Stather once again, telling him that Mr. Avery had to be stopped and that a superintendent would be getting involved.

During cross-examination, Mr. Stather acknowledged that he did not immediately report Mr. Avery’s interactions with Student #1 to School administration, his department head or the CAS as he did not believe anything of major concern was happening at the time.

Board Investigation

After the Member made allegations against Mr. Avery, Mr. Avery and Ms. Bowman filed workplace harassment complaints against her with the Board. Mr. Stather was interviewed by Mr. Tumminieri regarding these complaints. Mr. Stather told Mr. Tumminieri that he had once seen Mr. Avery alone in his classroom with Student #1. Mr. Stather also told Mr. Tumminieri that Mr. Avery did not comply with School safety and [XXX] regulations. Mr. Stather notified Mr. Avery in writing about the information that he shared with Mr. Tumminieri (see Exhibit 97). Mr. Stather testified that sometime in April 2009, the Member was sent home and did not return to the classroom for the rest of the year.

In late April 2009, Mr. Stather was contacted by the police. The Member had reported Mr. Avery’s behaviour to the police, and the police wanted to know if Mr. Stather had seen Mr. Avery striking or touching Student #1. Mr. Stather told them that while he had not actually witnessed Mr. Avery striking or touching Student #1, he suspected that Mr. Avery might have done these things. Mr. Stather documented this conversation (see Exhibits 92 and 93).

During cross-examination, Mr. Stather agreed that he was speculating when he told the police that he suspected that Mr. Avery had struck or touched a student. Mr. Stather recognized that it is not appropriate to speculate when there are serious allegations against a person.

Testimony of Mr. X, Student #1’s Father

Mr. X is Student #1’s father. He testified with regard to his daughter’s behavioural changes in 2009.

Mr. X stated that Student #1 had attended the School from 2004 to 2008. Before the 2008-2009 school year, Student #1 was a very happy and outgoing person who would often give people hugs. Although she was [XXX], she was able to use gestures and sounds to communicate with others.

Mr. X testified that around January 2009, his daughter’s behaviour started to change. She did not want to go to school, and when he came home at the end of the day, she would continually point at her mouth. Student #1 also had a worker who would assist her in the shower. At one point, the worker told Mr. X that Student #1 would touch the worker’s genitals and breasts in the shower. Mr. X further testified that Student #1 became scared when she went into a room and the door closed behind her, and that she would start to cry and head for the door.

In April 2009, Mr. X’s family was contacted by the police, who informed them that there had been a complaint of inappropriate behaviour involving their daughter and her teacher, Mr. Avery. Mr. X was shocked by the news as he had not heard anything about this matter from the School or the Board. The next day, Mr. X called Principal Hodgins to ask why he had not been informed of the School’s investigation involving his daughter. The principal replied that the School had conducted an internal investigation and that there was nothing to report.

Mr. X testified that he contacted Student #2, a family friend who attended the School and also worked with students in the [XXX] program. Student #2 told Mr. X that she had witnessed Mr. Avery taking Student #1 from the [XXX] back to his classroom on numerous occasions.

Mr. X contacted the Member, and she told him that she had seen Mr. Avery standing on Student #1’s legs. The Member also reported observing Mr. Avery standing with Student #1 in a compromising position in front of a classroom.

Mr. X testified that he subsequently withdrew his daughter from the School. He claimed that after she was removed from the School, she eventually stopped pointing to her mouth and touching her worker inappropriately. Mr. X testified that Student #1 is doing better now and he was thankful that the Member tried to protect his daughter.

Testimony of Ms. Sinthuja Kunabalasingam

In 2008-2009, Ms. Kunabalasingam was a student at Ryerson University in a child and youth care program, where she was taught to work with [XXX] youth and children with [XXX] issues. As part of the program requirements, she completed a co-op placement with the Program at [XXX]. The Member was her training supervisor. In the afternoons during her placement, Ms. Kunabalasingam worked with the Member during her [XXX] classes. Ms. Kunabalasingam testified that she had a professional relationship with the Member and that she learned a lot from the Member.

Ms. Kunabalasingam also testified that she knew Student #1 and she described her as a happy-go-lucky student. Ms. Kunabalasingam further testified that she attended [XXX] classes with the students once or twice per month in a supervisory role. On one occasion, Ms. Kunabalasingam noticed that Student #1 left[XXX] class halfway through the period with Mr. Avery. After that [XXX] class was finished, Ms. Kunabalasingam returned to the classroom with Ms. Bowman and the other students, but found that the classroom was locked and the window above the door was [XXX]. The only person that Ms. Kunabalasingam discussed this incident with was the Member.

Ms. Kunabalasingam also described an incident where Student #1 tried to kiss Mr. Avery who was sitting at his desk during lunch hour. Mr. Avery redirected the student with the help of Ms. Bowman who escorted the student back to her desk. The only person that Ms. Kunabalasingam spoke to regarding this event was the Member.

During cross-examination, Ms. Kunabalasingam agreed with College Counsel that part of her role in the co-op program was to ensure the safety of the students and to intervene when necessary. She also agreed that she had an obligation to report any incidents where students were in danger to her direct supervisor. Ms. Kunabalasingam never formally reported that any teacher at the School had inappropriate physical or sexual contact with a student.

With regard to Student #1 leaving [XXX] class early with Mr. Avery, Ms. Kunabalasingam conceded that she did not follow them after they left the class and that she would have intervened if she were concerned that anything inappropriate was happening. She also did not ask Mr. Avery what was going on, after the incident. She did not speak to Ms. Bowman, who had a very close connection to Student #1, about the incident. She also did not bring the incident to the attention of the School administration.

Ms. Kunabalasingam further conceded, during cross-examination, that she made no attempt to report the incident in which Student #1 tried to kiss Mr. Avery. During her debrief about the incident with the Member, Ms. Kunabalasingam was never told to document the incident or to report it to the School administration, the police or the CAS. She agreed that if she were concerned about any of the above incidents, she would have reported them. She further agreed with College Counsel that she never saw Mr. Avery make any physical or sexual contact with Student #1. She never saw him play with her hair and she never saw him step on her toes.

Testimony of Student #2

At the time of these proceedings, Student #2 was a second year student at Centennial College, studying in the child and youth work program. During the 2008-2009 school year, Student #2 was a grade [XXX] student at [XXX] and she was involved in the School’s leadership program. The leadership program was established to help students learn leadership skills by helping to integrate other students with [XXX] issues into the school.

Student #2 testified that she worked with Student #1 during the 2008-2009 school year, as part of the leadership program. She also knew Student #1 because Student #2’s boyfriend at the time was best friends with Student #1’s sister. She described Student #1 as very friendly, warm, and welcoming.

Student #2 further testified that, as part of the leadership program, she would attend [XXX] classes with Program students approximately two times per week. Mr. Avery’s class was present every [XXX] class that Student #2 attended, although Mr. Avery would sometimes not stay with his class for the entire period. The Member did not attend [XXX] classes, but Student #2 knew her because she volunteered in her class. Student #2 further testified that Student #1’s [XXX] attendance was inconsistent; she would sometimes leave before the class ended and other times, she would not come to [XXX] class at all.

Student #2 recalled a few occasions where Student #1 did not attend [XXX] class. On one occasion, Student #1 had taken her medication, which made her drowsy, before [XXX] class and Student #2 found Student #1 sleeping at her desk in her classroom. The lights were off, but the door to the classroom was open, and Mr. Avery was sitting at his computer desk in the classroom. Nobody else was in the classroom.

Student #2 also recalled a few occasions during the Fall 2008 semester where Student #1 left [XXX] class before the period was finished. On one occasion, she left alone with Mr. Avery. On another occasion, she left with Mr. Avery and Ms. Bowman to use the washroom. Ms. Bowman returned to the [XXX] class after that, but Mr. Avery and Student #1 did not. Student #2 did not follow the student and the teacher on these occasions; she remained in [XXX] class with the rest of the students.

On two other occasions in Fall 2008, Student #2 did go to Student #1’s classroom to check on her. She noted that the door to the classroom was locked on both occasions, the lights were out, and nobody answered the door when she knocked. She testified that she had brought this information to the attention of Ms. Bowman.

During the Winter 2009 semester, Student #2 went to check on Student #1 a couple more times when she had not shown up to [XXX] class. On these occasions, Student #2 had brought a friend with her. Again, when they arrived at the classroom, the door was locked, the lights were off, and nobody answered the door when they knocked.

Student #2 testified that Student #1 eventually stopped coming to school so she spoke to Student #1’s parents to find out why. The parents told to her that they had suspicions about inappropriate interactions at school and wanted to keep Student #1 home to see if they would notice any changes in their child’s behaviour.

During cross-examination, Student #2 agreed with College Counsel that, around the time of the events in question, she never complained about or reported any of the teachers at the School or felt like they were putting any students at risk.

With regard to [XXX] attendance, Student #2 also indicated in cross-examination that Student #1 was not the only student with a spotty attendance record. Moreover, she testified that she was not surprised that Student #1 did not always go to [XXX] class because she could be difficult to deal with at times, she could be quite assertive, and she could be difficult to move.

Student #2 further testified in cross-examination, that when she had gone to look for Student #1 in the classroom and found her sleeping at her desk, she was not concerned that anything inappropriate had occurred since Mr. Avery was sitting at his computer on the other side of the classroom. She also conceded that when she had gone to check on Student #1 and found the classroom doors to be locked with the lights out, she had no way of knowing whether Student #1 and Mr. Avery were actually in the classroom or not. Prior to the Member leaving the School, she was never concerned that Student #1 was being physically or sexually assaulted. She agreed that she would have said something about this if she were concerned for Student #1’s safety.

During the time between the Winter 2009 semester and the Member’s departure from the School, Student #2 never complained to the School administration, to the police, or to CAS about Mr. Avery. She also never saw Mr. Avery physically or sexually assault Student #1.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the Committee ought to determine the outcome of this case by relying on two overarching principles: the burden of proof and relevance. College Counsel highlighted the three main allegations against the Member:

1. the Member called Mr. Avery a liar in front of students and staff at the School;

2. the Member falsely reported to the School’s administrators that Mr. Avery stood on the toes of a [XXX] [XXX] [XXX]-year-old female student, Student #1, and did not allow Student #1 to get out of her chair in the classroom; and

3. the Member falsely reported to the School administrators that she had, on or about March 11, 2009, observed Mr. Avery stroking Student #1’s hair and touching Student #1 on her shoulder, at the School.

With regard to the burden of proof, College Counsel submitted that these three allegations were all that the College needed to prove in order for the Committee to make a finding of professional misconduct. The questions of whether Student #1 was removed from [XXX] class early or spent time in a locked, dark classroom with Mr. Avery have no bearing on the College’s case.

With regard to relevance, College Counsel submitted that much of the evidence led by Member’s Counsel was completely irrelevant to the outcome of the case. According to College Counsel, whether or not the Committee accepts that Mr. Avery left [XXX] class early with Student #1, that he spent time in a locked, dark classroom with Student #1 or that Student #1’s behaviour changed at some point during the 2008-2009 school year, cannot be used to defend the Member against any of the three allegations brought against her. They do not respond to whether or not the Member called Mr. Avery a liar in front of students and staff, to whether she falsely reported Mr. Avery for stepping on the toes of a student, or to whether she falsely reported Mr. Avery for stroking the hair and touching the shoulder of a student.

College Counsel further urged the Committee to bear in mind that Mr. Avery is the complainant in this case; he was not responding to any allegations in this case. As such, it would be completely improper for the Committee to make any finding against him and it was inappropriate for Member’s Counsel to use the hearing as a forum to make collateral attacks on Mr. Avery. According to College Counsel, it is important for the Committee to remember that this proceeding is only against Ms. Grogan.

In addition, College Counsel submitted that the collateral attacks that Member’s Counsel brought against the three investigation processes (those conducted by the Investigations Committee, the School Administrators, and the School Board) were not helpful to the Committee. College Counsel submitted that the Committee should not put any weight on the question of whether the investigations were properly conducted because it is not relevant to the disposition of this case.

The Liar Incident

The liar incident occurred on October 14, 2008. College Counsel submitted that the allegation related to this incident is largely uncontested. According to College Counsel, there is no question that the Member said the word “liar” in a heated exchange with Mr. Avery. She admitted this in cross-examination. College Counsel further submitted that there was ample evidence that students and staff were present when the Member called Mr. Avery a liar. Given the Member’s admission with regard to the liar incident, College Counsel submitted that this allegation has been proven.

College Counsel addressed the nuanced argument of the Member that she did not begin the interaction by calling Mr. Avery a liar, but rather, that he asked her if she was calling him a liar to which she responded, “Yes, I’m calling you a liar.”

Regardless of whose nuanced version of this incident is accepted, College Counsel submitted that the Member admitted to using the word “liar”, she admitted that her voice was raised when she used it, and there were clearly students and staff in the area when she said it. According to College Counsel, that is all that is required to prove the allegation.

The Toes Incident

On October 14, 2008, the Member raised her concerns about Mr. Avery stepping on Student #1’s toes with the School administration and she claimed that it was also the first time that she had raised her concerns about the alleged toes incident with Mr. Avery. She claimed that the toes incident occurred on October 2, 2008. College Counsel submitted that apart from the Member’s evidence, the Committee has no evidence whatsoever of any inappropriate physical contact between Mr. Avery and Student #1.

College Counsel addressed the fact that there was conflicting evidence regarding the toes incident. According to the Member, at the end of the liar incident, she told Mr. Avery in passing that she saw him step on Student #1’s toes. Mr. Avery’s version of events is that the Member never discussed the toes incident with him during the liar incident.

College Counsel submitted that the Committee ought to accept Mr. Avery’s evidence regarding the toes incident. According to College Counsel, none of the several witnesses who testified that they had heard the liar incident mentioned anything about the toes incident. According to College Counsel, there is no corroboration whatsoever for the Member’s unlikely version of events.

College Counsel submitted that the reason the Member complained to the School administration about the alleged toes incident on October 14, 2008 is that Mr. Avery had told her, during the liar incident, that he was going to complain to the administration that the Member had called him a liar in front of students and staff. Because the Member knew that Mr. Avery was going to report her behaviour to the School administration, she needed something to counteract his complaint, so she fabricated the toes incident.

College Counsel further indicated that it is odd that the Member would have waited 12 days to report an incident of physical abuse if it had truly occurred on October 2, 2008. If a teacher suspected that a student had been physically abused, or was exposed to a risk of harm, there is a clear duty to report such an incident immediately. The Member’s excuse that she waited so long because she did not feel comfortable reporting to school administration is not credible, according to College Counsel.

College Counsel took the position that the Member’s evidence with regard to the toes incident is completely implausible and would require the Committee to suspend belief in order to accept the Member’s version of events. The Member’s version of events, according to College Counsel, was as follows: the Member was alone with Student #1 in the classroom; Mr. Avery enters the classroom (despite the Member’s instructions to other teachers not to enter her classroom while she is instructing her students); the Member is inches away from the student and has her back to the door; she feels Mr. Avery’s presence, turns around and sees him stepping on the student’s toes with all his weight; she and Mr. Avery make eye contact; Mr. Avery gets off the student’s toes; and, he walks over to his desk in the classroom, picks up some things and walks out. During this entire event, Mr. Avery, the Member, and the student say nothing. The student does not utter a sound or react in any way.

Moreover, College Counsel submitted that the Member never checked the student for bruising and never told anyone else to check for bruising later in the day. She did not report the incident to the EA, she did not call the student’s parents to report the incident, and she did not immediately report the incident to the School administration.

College Counsel also highlighted what he suggested were two glaring inconsistencies in the Member’s testimony. First, the Member’s demonstration and description of how Mr. Avery stepped on Student #1’s toes during the hearing was not consistent with her description of the event in a letter she wrote on October 14, 2008. Second, the Member’s testimony with regard to the date of the toes incident was inconsistent with what she had recorded in one of her daily planners. College Counsel asked the Committee to question how the Member could have gotten the date of such an important event wrong when she claimed to document her observations contemporaneously in her daily planner.

Ultimately, College Counsel submitted that the toes incident never happened and that the Member falsely reported it to the School administration. The Member got important details wrong, such as the date and the particulars of how Mr. Avery stepped on the student’s toes, and she alleged a scenario that defies logic. There was absolutely no corroborating evidence to support the Member’s version of events. In addition, there was the issue of the inexplicable delay in reporting the incident or doing anything to respond to the fact that she saw a colleague physically abuse a student.

The Inappropriate Touching Incident

College Counsel submitted that apart from the Member’s evidence, the Committee has no evidence whatsoever of any inappropriate physical or sexual contact between Mr. Avery and Student #1. Aside from the Member’s testimony, there were no witnesses, no videos, and no evidence that Mr. Avery stroked Student #1’s hair or touched her shoulder inappropriately. College Counsel’s position is that this incident never happened.

College Counsel indicated that there were several inconsistencies regarding the location that the Member claimed this incident occurred, the supposed timing of the incident, and the date that the Member claimed to have reported the inappropriate touching incident.

College Counsel further submitted that it is implausible that the Member would have observed what she claimed to have observed and that she did absolutely nothing about it. According to the Member’s evidence, she witnessed the inappropriate touching first hand, she felt sick to her stomach as a result, and she noticed that Student #1 seemed uncomfortable. Her response to this situation, however, was to go into her office and do nothing. She did not alert the School administration, she did not call the police, and she did not notify the CAS. Even more peculiar is the fact that the Member claims to have seen Mr. Avery take Student #1 from [XXX] class back to his classroom alone at least six times between October 2008 and March 2009 but still did not feel the need to intervene in this situation.

Perhaps even more significant, according to College Counsel, is that upon reviewing the video surveillance footage over the entire range of possible times that the incident could have occurred, there was absolutely no evidence of inappropriate touching. In fact, there was video evidence showing that Mr. Avery left the School and drove away at 1:15 p.m. on the day of the alleged incident, which means that he could not have possibly been involved in the incident that the Member reported. There were several witnesses who corroborated the fact that Mr. Avery was not in the School at the time of the alleged incident. Accordingly, College Counsel submitted that this proves the allegation that the Member falsely reported the inappropriate touching incident.

College Counsel also relied on R. v. Mesfin, 2012 ABPC 115 (“Mesfin”), and R. v. Pires, 2012 ONCJ 713 (“Pires”) to support his position that, even though the video footage had been lost, the Committee could still rely on the testimony of the several witnesses who had viewed the video before it was lost. This evidence about what they saw (or more precisely, the fact that they did not see Mr. Avery sexually abusing Student #1 in the video) is admissible and is not the same as traditional hearsay evidence, according to College Counsel. The witnesses who viewed the video are allowed to give evidence about what they observed, even if the video was no longer available.

Ultimately, College Counsel submitted that there was ample evidence to prove that the Member falsely reported to administration that Mr. Avery sexually abused Student #1.

SUBMISSIONS OF MEMBER’S COUNSEL

Member’s Counsel began her submissions by framing her argument in terms of credibility and motive. She urged the panel to consider the credibility of Mr. Avery and the motives of those involved in this case. Member’s Counsel took the position that the College had not shown clear, cogent and convincing evidence that the Member knowingly made false allegations against Mr. Avery.

Member’s Counsel further submitted this case was all about Student #1, who Member’s Counsel insisted was the most important person in this case. According to Member’s Counsel, she was a happy, sweet student who, over the course of the 2008-2009 school year, began to display sexualized behaviour. Member’s Counsel further submitted that Student #1’s sexualized behaviour ended when her father pulled her out of the School, although the student still screamed whenever a door was closed behind her in a new setting.

In addition, Member’s Counsel presented the Committee with various pieces of legislation dealing with the duty to report physical and sexual harm. For instance, Member’s Counsel highlighted the Ontario College of Teacher’s Professional Advisory on Professional Misconduct Related to Sexual Abuse and Sexual Misconduct, which states that if a member of the College has reasonable grounds to suspect sexual abuse of students or sexual misconduct, a member has a responsi­bility to report suspected or alleged cases to appropriate authorities.

According to Member’s Counsel, the threshold that triggers the duty to report is a low one: “reasonable grounds to suspect” is a much lower legal standard than proof on a balance of probabilities. As such, the Member was not acting unreasonably when she reported the inappropriate touching incident. She had reasonable grounds to suspect that Mr. Avery had sexually assaulted a student. Member’s Counsel also relied on Ontario College of Teachers v. Ross, 2009 LNONCTD 50, and Ontario College of Teachers v. Tallevi, 2011 LNONCTD 33 to indicate that the consequences for failing to report incidents of physical or sexual abuse are severe. Accordingly, the Member acted reasonably when she reported Mr. Avery’s conduct, because if she had not reported the conduct, she could have faced severe consequences for her failure to report.

The Toes Incident

Member’s Counsel first submitted that the toes incident was quite peculiar. According to Member’s Counsel, it was improbable that, if the Member were going to make a false accusation, she would choose to fabricate such a strange incident.

Member’s Counsel further submitted that the Member was scared and intimidated by what she had seen, which is why she did not report the incident immediately. According to Member’s Counsel, it was only during the liar incident on October 14, 2008, when the Member and Mr. Avery were in the midst of a heated argument, that the Member mustered up the courage to confront Mr. Avery about the toes incident.

Credibility

Member’s Counsel submitted that the toes incident is a he-said-she-said situation where the Member says that Mr. Avery stepped on Student #1’s toes and Mr. Avery denies it. According to Member’s Counsel, the Committee must determine who is more credible on this point. Member’s Counsel presented the Committee with case law to assist in its credibility determinations.

Member’s Counsel submitted that the Member’s evidence was credible. The Member was a dedicated and diligent teacher who was passionate about helping [XXX] students. With respect to the discrepancies in her evidence about how Mr. Avery stepped on Student #1’s foot and when the incident occurred, Member’s Counsel submitted that, despite these discrepancies the Member remained a credible witness. Member’s Counsel urged the Committee to look at the totality of the evidence and not to view these discrepancies in isolation when determining credibility. Member’s Counsel relied on F.H. v. McDougall, 2008 SCC 53 (“McDougall”) to support this proposition.

Member’s Counsel further submitted that Mr. Avery was not a very dedicated teacher. He would drop students off at [XXX] class and leave, or leave in the middle of a [XXX] class. He also left the school without signing out on at least one occasion, leaving his students with other teachers.

In addition, Member’s Counsel submitted that Mr. Avery’s evidence was not very credible. He claimed to have never worked with the Member, although the Committee heard from the Member and from Mr. Farrington that Mr. Avery had worked with the Member at a different school for two years before joining the School. Mr. Avery tried to minimize how often there was [XXX] covering the window of his door. He claimed that he only had [XXX] covering the window for lock down drills or for decorating over a short period of time. Member’s Counsel submitted, however, that the window to his classroom door was [XXX] for the whole school year. Furthermore, Mr. Avery claimed that he never took Student #1 back to his classroom alone while the rest of his students were in [XXX] class. At least four witnesses, however, testified that they saw Mr. Avery leave [XXX] class early, with or without Student #1.

Accordingly, Member’s Counsel submitted that the Committee ought to accept the Member’s evidence with regard to the toes incident rather than Mr. Avery’s evidence.

The Inappropriate Touching Incident

Member’s Counsel submitted that the College did not have clear, cogent and convincing evidence to prove that the Member falsely reported to School administration that Mr. Avery stroked Student #1’s hair and inappropriately touched her shoulder on March 11, 2009.

Member’s Counsel addressed the issue of the timing of the alleged incident. According to Member’s Counsel, the incident occurred during period three, which takes place between 12:35 and 1:45 p.m. On March 11, 2009, the Member was teaching period three in Mr. Avery’s classroom (Room 139). Her evidence was that she left the class to get supplies and saw Mr. Avery inappropriately touching Student #1 in the [XXX] at that time. Member’s Counsel further submitted that it would be very unlikely for the Member to be retrieving supplies at the end of the period, which would make it more likely that the incident occurred during the earlier part of the 12:35 to 1:45 p.m. range.

Member’s Counsel also noted that the incident occurred during the School’s exam period, which would have meant that the hallways would have been quiet at this time. In addition, Member’s Counsel pointed to the evidence that there would have been a blind spot in the [XXX], where the video surveillance cameras would not have reached. These pieces of evidence, according to Member’s Counsel, make it more probable that a teacher would engage in this type of behaviour with a student; because there was less risk of being caught than usual.

Member’s Counsel further submitted that the Member did not have any motive to fabricate this incident. She had no vendetta against Mr. Avery. Furthermore, the Member asked Mr. Canam if she could review the video surveillance tapes. She never would have asked to review the video evidence if she had not seen anything happen. Member’s Counsel maintained that the Member’s request to view the video surveillance tapes made sense because when she had reported incidents to the School administration in the past, she had not received an adequate response from administration. The Member needed corroborating evidence to ensure that her complaint would not, once again, fall on deaf ears.

Member’s Counsel responded to College Counsel’s submission that the Member’s account of the inappropriate touching incident contained significant discrepancies by urging the Committee not to place much weight on Exhibit 83 which, according to Member’s Counsel, was not reliable. College Counsel had relied on Exhibit 83, the Police Occurrence Report, to indicate that the location that the Member had testified that the sexual touching incident occurred differed from that indicated in the police report. According to Member’s Counsel, however, Exhibit 83 contains hearsay evidence and potentially biased information. Before preparing this summary, the police had been told by the School principal and superintendent that the Member was a troublemaker, which according to Member’s Counsel, may have coloured their report. Member’s Counsel submitted that Exhibit 83 was neither reliable nor necessary and should not be relied on by the Committee.

Member’s Counsel further submitted that Mr. Avery’s evidence with regard to the inappropriate touching incident was troublingly vague and should not be relied on because it was not clear, cogent and convincing. According to Member’s Counsel, it was problematic that Mr. Avery was not clear about what he was doing on March 11, 2009, where he was doing it, and why he was doing it. In addition, given the inconsistencies in the evidence of the various witnesses who described why Mr. Avery was not at the School at the time of the inappropriate touching incident, Member’s Counsel urged the Committee not to accept College Counsel’s version of events.

Member’s Counsel further submitted that, because the video surveillance footage does not have a date or time embedded on it, the Committee could not be certain that the footage of Mr. Avery leaving the School was actually taken on March 11, 2009.

Unlike College Counsel, Member’s Counsel submitted that it was plausible for Mr. Avery to have inappropriately touched Student #1 at the time and place described by the Member. According to Member’s Counsel, the incident occurred during the School’s exam period, when the hallways would have been empty. The inappropriate touching took place in an [XXX] and at a convenient time, because Ms. Glazier and Mr. Avery were teaching 4^th period [XXX] together at the time. Mr. Avery could have snuck away from his class because Ms. Glazier would have been able to cover for him. Member’s Counsel took the position that there was the requisite motive, time, and opportunity for Mr. Avery to engage in the inappropriate conduct that the Member reported.

Member’s Counsel further submitted that the Committee should be wary of the video surveillance evidence on which College Counsel relied. First, Member’s Counsel submitted that the Committee has never seen this evidence because it was lost, so the Committee did not have the opportunity to assess what the video actually captured.

Member’s Counsel further submitted that the various summaries of the video evidence, which were made by the witnesses who had viewed the evidence, were not reliable. The eyes that were doing the watching, according to Member’s Counsel, were biased and lacked credibility.

Member’s Counsel submitted that Ms. Bowman was not a credible witness. She was part of a “clique”, which included Mr. Avery, and she deliberately lied during her testimony, according to Member’s Counsel. She testified that she did not see Mr. Avery leave [XXX] class alone with Student #1 and that she did not see Student #1 try to kiss Mr. Avery. According to Ms. Kunabalasingam, however, Ms. Bowman was with her when they saw Mr. Avery and Student #1 alone in his classroom at the end of a [XXX] class, and Ms. Bowman was involved in redirecting Student #1 after she tried to kiss Mr. Avery. Member’s Counsel submitted that Ms. Bowman lied to protect herself and her job and is therefore not credible. As such, Member’s Counsel argued that the Committee should not trust her account of the video evidence.

Member’s Counsel submitted that Mr. Canam was not a credible witness. According to Member’s Counsel, his evidence about his conversation with the Member was completely different from the statement that he had provided to Mr. Tumminieri three years earlier. Mr. Canam also inexplicably tried to defend his position that he had no idea that it was against school policy to show video surveillance footage to anyone who asked. His boss, Mr. Lopes, did not hesitate to confirm that this was against school policy. Member’s Counsel took the position that Mr. Canam pleaded ignorance to the policy in order to avoid responsibility for deliberately flouting it. Member’s Counsel therefore submitted that the Committee should not rely on Mr. Canam’s account of the video evidence, since he was not a credible witness.

Member’s Counsel further submitted that there were wild discrepancies in the testimonies of the various witnesses who had viewed the video surveillance footage. Mr. Moura testified that the video was not time stamped, yet Mr. Canam said it was. Several of the witnesses testified that they had viewed different time segments of the video. Mr. Canam testified that he could see 500 students in the hallways at some points in the video, whereas Principal Hodgins said that there were very few students captured by the video surveillance. Ms. Bowman testified that she saw herself on the video returning from lunch alone, whereas Mr. Canam said that he had seen Ms. Bowman return from lunch with another teacher. Mr. Moura, Principal Hodgins, and Mr. Lopes did not testify that they saw Ms. Bowman returning from lunch on the video. Of all the witnesses who viewed the video, only Mr. Moura saw Mr. Avery speak to Ms. Glazier in the hallway. Only Ms. Bowman saw herself and Mr. Avery pass each other in the hallway. Only Mr. Canam claims to have never seen Mr. Avery in the video at all.

Member’s Counsel submitted that, because the Committee was not provided with a consistent description of what actually happened in the hallway and because it could not view the lost video itself, the video evidence should be given no weight. The witnesses who described the video were biased and lacked credibility and the evidence given was not clear, cogent and convincing.

Member’s Counsel further submitted that the Member did not falsely report the inappropriate touching incident, but rather, her report was appropriate given that she had a reasonable suspicion that Mr. Avery had sexually assaulted Student #1. According to Member’s Counsel, the Member was not required to present evidence that would prove her case on a balance of probabilities or beyond a reasonable doubt; all that she required was a reasonable suspicion in order to report what she witnessed. According to Member’s Counsel, the Member had a reasonable suspicion and therefore reported to School administration, the Board, the police, and the CAS. She had a legal duty to do so.

The Liar Incident

Member’s Counsel submitted that the precise language of this allegation matters and that the allegation, as drafted in the Notice of Hearing, was not proven. According to Member’s Counsel, Mr. Avery alleged that the Member called him a liar “in front of” students and staff at the School and he maintained this fiction before the Committee. Member’s Counsel submitted that, over the course of these proceedings, College Counsel dropped the “in front of” language and instead argued that the Member called Mr. Avery a liar with staff and students present. According to Member’s Counsel, there is a difference between the language “in front of” and language stating that staff and students were in the vicinity when the liar incident occurred. Given that there was no evidence that staff or students were in Mr. Avery’s classroom at the time of the liar incident, Member’s Counsel submitted that the allegation was not proven.

Member’s Counsel further submitted that the Member’s version of the liar incident was corroborated by College witnesses. Ms. Bowman testified that she and her students were not in the room during the incident. Ms. Glazier testified that the students were at their lockers during the incident, and therefore not in the room. Nonetheless, Mr. Avery maintained that there were a number of people in his classroom at the time of the incident, according to Member’s Counsel.

Counsel for the Member presented five reasons why the liar incident should not give rise to a finding of professional misconduct. First, the allegation, as written, has not been proven. The incident did not occur “in front of” staff and students. Second, the allegation does not rise to the level of professional misconduct. Member’s Counsel relied on Ontario College of Teachers v. Fabel, 2010 LNONCTD 19, for the proposition that not every lapse in judgment or transgression of civility amounts to professional misconduct. Third, this was an exceptional, one-off event for the Member who otherwise has demonstrated a clean teaching record. Fourth, the timing of this allegation and the complaint as a whole is a reprisal against the Member for her complaints made against Mr. Avery. According to Member’s Counsel, the Member should not be punished for informing the School administration about the inappropriate conduct of one of her colleagues. Fifth, Member’s Counsel submitted that a finding of professional misconduct in this case would deter other members of the profession from reporting inappropriate conduct.

Ultimately, Member’s Counsel submitted that the Member’s conduct did not amount to professional misconduct. She fulfilled her legal duty to report at great personal cost. Member’s Counsel asked that the Committee consider her strength and resolve and that it dismiss the allegations against the Member.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel responded to Counsel for the Member’s submission that Student #1 was the most important person in this case by suggesting that she was not. According to College Counsel, Student #1 was the most important person in the fictional case that never happened. The fact that Member’s Counsel suggested that she was so important signaled that Member’s Counsel was conflating the issues in this case. College Counsel reminded the Committee that, although Member’s Counsel spent considerable time addressing the [XXX] allegations (i.e. that Mr. Avery left [XXX] class with Student #1 on several occasions), this was not an issue that needed to be addressed; it is not in the Notice of Hearing and it is not part of the College’s case.

According to College Counsel, the [XXX] allegations have been blown out of proportion and are simply an after the fact justification for the Member’s complaints against Mr. Avery. Regardless of whether there was conflicting evidence before the Committee with regard to the [XXX] allegations, College Counsel reminded the Committee that not a single witness complained about this incident at the time and nobody (including the Member) thought that there was any sexual misconduct occurring between Mr. Avery and Student #1.

With regard to the Member’s credibility, College Counsel submitted that the Committee should not rely on any of the written documentation that the Member presented. College Counsel explained that the Member’s credibility issues had nothing to do with her memory but rather, the Member’s written documentation contained contradictory information that could not be relied on by the Committee.

College Counsel also addressed the issue of the Member’s motivation for making false reports. According to College Counsel, there was no need to prove what her motivation was; her motivation is irrelevant. The question for the Committee to determine is whether these incidents happened, not why they happened.

College Counsel then took the Committee through a series of charts created by Member’s Counsel, which had been presented as a summary of the evidence. College Counsel advised the Committee that these charts contained submissions of Member’s Counsel and urged the Committee to be careful when using these charts and not to rely on them as evidence. Instead, College Counsel insisted that the Committee examine the underlying evidence if it was going to rely on any of the submissions presented by Member’s Counsel in her charts. College Counsel offered several examples of where the charts did not provide the full picture.

First, College Counsel addressed the issue that some of the teachers at the School were part of a clique. College Counsel asked, “so what?” and alerted the Committee to the underlying implication of labeling the teachers “cliquey”. The implication was that, because some of the witnesses were part of a clique, they allowed Mr. Avery to physically and sexually abuse Student #1. Because they were part of a clique, they also covered up the incidents and lied under oath. College Counsel urged the Committee to consider these implications before giving any weight to the submissions of Member’s Counsel that some of the witnesses were not credible because they were part of a clique.

Second, College Counsel addressed the issue of whether the School administration was tougher on the Member than they were on Mr. Avery. College Counsel disagreed with Member’s Counsel that the School administration treated Mr. Avery more leniently than the Member. For instance, College Counsel argued that the reason that Mr. Moura was not overly concerned with Mr. Avery leaving [XXX] class early was that it was not something that occurred on a regular basis and it was not something that put students at risk. The nature of the Program was such that teachers would collaborate and take over for each other when another teacher had something else to do. Mr. Moura was certainly not brushing the issue under the rug; the conduct was simply not very concerning.

College Counsel suggested that if the administration treated the Member differently from Mr. Avery, it was for good reason. After having reviewed video evidence and conducted numerous interviews, the School administration concluded that the Member’s allegations were false and acted accordingly. Mr. Avery received less discipline from administration because, having looked into the complaints, the administration found that Mr. Avery had raised valid complaints whereas the Member had not.

Third, College Counsel advised the Committee to beware of the inaccuracies in the chart created by Member’s Counsel. For instance, the chart characterized Mr. Stather as saying that Mr. Avery left[XXX] class early with Student #1 on three occasions. According to College Counsel, that is simply not true; there was only one instance where Mr. Stather saw Mr. Avery leave [XXX] class with Student #1. On two of the three instances described in the chart, Mr. Stather did not actually see the teacher and student leave class together; he only noticed that neither was in class when he turned around. This distinction is important, in the view of College Counsel, because the fact that Mr. Avery and Student #1 were not in class does not mean that they left class together.

Fourth, College Counsel addressed the argument of Member’s Counsel that Student #1’s increased sexualized behaviour was linked to Mr. Avery’s conduct. College Counsel stated that connecting these two ideas was completely improper. There was nothing linking Mr. Avery to these sexualized behaviours, the Committee heard no expert evidence on the issue, and there may be any number of reasons why Student #1 may have begun to display sexualized behaviour. To connect Student #1’s sexualized behaviour to Mr. Avery’s conduct did not just require a leap, according to College Counsel, but an “international flight”.

Fifth, College Counsel addressed the issue of there being contradictory evidence of where and why Mr. Avery left work early on the day of the inappropriate touching incident. College Counsel submitted that the Committee should ask itself “so what?” The point is that Mr. Avery was not in the School, so he could not have been involved with the inappropriate touching incident as the Member had alleged. He did not have to prove where he was or why he left.

Sixth, College Counsel addressed the issue of whether or not the window on Mr. Avery’s door was [XXX]. College Counsel suggested that it made no difference whether or not his window was [XXX]. Teachers and EAs from the school testified that different teachers had different practices. Some windows were frosted, some were covered, and others were not. At worst, this leads to the conclusion that the school was not vigilant in applying the same protocol to all teachers. Ultimately, though, this issue should have no bearing on the outcome of this case.

Seventh, College Counsel addressed the issues surrounding the video evidence. According to College Counsel, the issue that Member’s Counsel raised regarding whether the videos were time-stamped or time-embedded was misleading. Based on the evidence of Mr. Moura and Mr. Canam, when the video was viewed, the date and time stamps were visible in the footage. When the video was saved, however, the date and time stamps were no longer visible in the footage, but got saved in the file name. So, according to College Counsel, there should be no question as to when the events viewed on the video occurred, and the issue of whether or not there were time stamps is irrelevant.

College Counsel also addressed the submission of Member’s Counsel that the Committee cannot be certain that the footage showing Mr. Avery leaving the School was even taken on the day of the inappropriate touching incident. Given that there was no suggestion that the video was doctored, the only way to come to this conclusion is to accept that all the witnesses who testified that they saw footage of Mr. Avery leaving the School on the day of the incident were lying. College Counsel urged the Committee not to buy into a conspiracy theory that a number of witnesses lied under oath to cover up an incident where one of their colleagues sexually abused a [XXX] [XXX], [XXX] student.

With regard to the issue of blind spots in the video footage, College Counsel submitted that even if the video cameras did not record the insides of the [XXX], there is no way that two people of Mr. Avery and Student #1’s [XXX] could spend time in an [XXX] without being captured by video surveillance. Moreover, even if the [XXX] were part of a blind spot in the surveillance, some of the witnesses would have still seen Mr. Avery and Student #1 entering or exiting the [XXX]. Nobody did.

College Counsel also addressed the issue raised by Member’s Counsel that there were inconsistencies with regard to the time segments of the video footage that witnesses had viewed. First, College Counsel submitted that the witnesses may have looked at different video segments because the Member had asked them to look at different segments; she was inconsistent with her requests. Second, according to College Counsel, it was unsurprising that the investigators of this incident looked at different segments of the video footage. In order to conduct a thorough investigation, one would expect that different investigators would look at different aspects of an investigation and would focus on different parts of the video evidence.

Ultimately, College Counsel submitted that this case was not about what was captured by the video surveillance, but what was not captured. There was ample evidence from multiple witnesses, including the Member, showing that nothing untoward happened between Mr. Avery and Student #1 in any of the video footage. What is important is not whether everyone saw exactly the same thing in the video footage, but the fact that everyone who viewed the video did not see the incident reported by the Member.

College Counsel also responded to the submissions of Member’s Counsel with regard to the liar incident and urged the Committee not to accept the technical argument put forward by Member’s Counsel. The fact that the allegation reads that the Member called Mr. Avery a liar “in front of”, as opposed to “in the vicinity of”, staff and students is not material. The fact remains that the Member raised her voice and accused Mr. Avery of being a liar. Multiple witnesses heard this, whether or not they were in the room. College Counsel submitted that it is actually worse if the staff and students who heard this were not in the room, and yet were still able to hear the incident. This signals how unprofessional the Member’s conduct was.

With regard to the submission of Member’s Counsel that the timing of Mr. Avery’s complaints was suggestive of a reprisal, College Counsel replied that this submission should not carry much weight. Mr. Avery did not wait days or weeks to file his complaints. The same day that the Member accused him of being a liar, he complained to the School administration. In contrast, the Member complained about the toes incident weeks after it allegedly occurred and only after Mr. Avery told the Member that he was going to complain about her conduct. The Member’s conduct was far more suggestive of a reprisal than was Mr. Avery’s.

Finally, College Counsel responded to the submission of Member’s Counsel that a finding of professional misconduct in this case would deter other members of the profession from reporting inappropriate conduct. According to College Counsel, the Committee did not need to be concerned with this issue. There is no question that when a teacher has a reasonable basis to report misconduct, they should do so on a timely basis. This case is different. There was no reasonable basis for the Member to report her colleague to the School administration and her complaints were not made in a timely manner. A finding of professional misconduct in this case would not have a chilling effect on the reporting of inappropriate conduct because it is clear, in this case, that the Member was fabricating the conduct that she reported.

College Counsel ended his reply submissions with the following analogy. If a teacher smells smoke, they should trip the fire alarm. The evidence in this case clearly established that there was no smoke. It is improper to trip a fire alarm when there is no smoke. That is what the Member did in this case. A finding of professional misconduct is appropriate, particularly given the significant, negative impact that the Member’s false reports have had on Mr. Avery’s life. He is the real victim in this case.

DECISION

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof set out in McDougall, which is proof on a balance of probabilities. The allegations must be supported by clear, cogent and convincing evidence in order for the Committee to make a finding 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 Angela Anita Grogan committed acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

In arriving at its decision, the Committee carefully considered the evidence presented by both parties, the submissions of Counsel for the College and Counsel for the Member, as well as all relevant jurisprudence. The Committee was careful to maintain its focus solely on the allegations contained in the Notice of Hearing and to the particulars contained therein; notably, 1) the liar incident, 2) the toes incident, and 3) the inappropriate touching incident. Although the Committee heard significant testimony and submissions regarding the [XXX] incident, the Committee was mindful that, while providing some background information, the facts related to the [XXX] incident were not directly relevant to the allegations contained in the Notice of Hearing.

In the reasons that follow, the Committee addresses each of the incidents contained in the Notice of Hearing. The Committee applied a two-step process in making its decision. First, the Committee determined whether there was sufficient evidence to prove the allegations contained in the Notice of Hearing, on a balance of probabilities. Second, if the Committee found that the allegations were proven, the Committee then determined whether the facts gave rise to a finding of professional misconduct. The Committee applied this two-step process to each of the incidents referred to above: 1) the liar incident, 2) the toes incident, and 3) the inappropriate touching incident.

The Liar Incident

The Committee finds that there was sufficient evidence to prove that the liar incident occurred on a balance of probabilities; however, the Committee does not find that this incident gives rise to a finding of professional misconduct.

The Committee was convinced that the Member called Mr. Avery a liar in front of students and staff at the School. The Committee heard submissions regarding the timing of the alleged incident, whether the incident occurred “in front of” students (as opposed to in the vicinity of students), and who first uttered the word “liar”. Although the Committee appreciated the nuances surrounding the liar incident, it was ultimately unpersuaded that these nuances were significant. Regardless of whether the liar incident occurred before the start of period 1 or after period 1, and regardless of who initiated the confrontation between the Member and Mr. Avery, the Committee is confident that the Member called Mr. Avery a liar and that this exchange was overheard by staff and students.

The Committee also heard the technical argument of Member’s Counsel that the evidence did not support the precise wording “in front of students and staff” as outlined in the Notice of Hearing. The Committee, however, accepted the College’s submission that it did not matter that the allegation stated that the Member called Mr. Avery a liar “in front of” (as opposed to “in the vicinity of”) staff and students. The fact remains that the Member raised her voice and accused Mr. Avery of being a liar. Multiple witnesses heard this, whether or not they were in the room. Whether the allegation read that the Member called Mr. Avery a liar “in front of” or “in the vicinity of” students and staff is a distinction without a difference. Allegations in administrative hearings are not held to the same strict standard as are criminal charges.

At least six witnesses, including the Member, testified that the Member called Mr. Avery a liar, and at least three of these witnesses testified that students were in the hallway outside of Mr. Avery’s classroom at the time of the incident. Ms. Bowman, Ms. Blackwell, and Ms. Glazier all testified that, although the incident did not occur directly “in front of” them, they all overheard the Member call Mr. Avery a liar. Further, all three testified that at the time of the liar incident, students were at their lockers or in the hallway and would have similarly overheard the incident. Accordingly, the Committee finds that the College has met its burden of proving that the Member called Mr. Avery a liar in front of students and staff at the School.

The Committee, however, does not find that this conduct rises to the level of professional misconduct. Although the Member’s conduct was inappropriate, the Committee accepts that this was an isolated incident that occurred in the heat of the moment. While incidents of this nature must be dealt with appropriately, this particular incident could have been adequately resolved in a different forum. The liar incident on its own, while unfortunate, does not give rise to a finding of professional misconduct.

The Toes Incident

The Committee finds that there was sufficient evidence, on a balance of probabilities, to prove that the Member falsely reported the toes incident. The Committee further finds that the act of making this false report gives rise to a finding of professional misconduct.

The Committee heard conflicting evidence with regard to the toes incident. The Committee’s task is therefore to gauge the credibility of the Member and Mr. Avery in order to determine whose version of events was more likely to have occurred. Having carefully examined both versions of events, the Committee finds that it is more likely that the toes incident did not occur. The Committee arrived at this conclusion because it found the evidence of the Member to be less credible than that of Mr. Avery for three reasons:

1. the Member presented an implausible version of events;

2. the Member’s evidence contained several troubling inconsistencies surrounding this incident; and

3. the Committee could not accept that a concerned teacher would have waited nearly two weeks to report an incident of physical abuse and would not have followed up with the student after such an incident.

First, the Member presented what the Committee perceived to be an implausible scenario regarding the toes incident. According to the Member, the toes incident occurred as follows. Mr. Avery enters into the classroom and, in the presence of the Member, physically assaults a [XXX] student by stepping on her foot. Mr. Avery and the Member then make eye contact, Mr. Avery removes himself from the student’s foot, and he proceeds to his desk unfazed. Mr. Avery then quietly leaves the classroom. During this entire incident, the Member and Mr. Avery do not say a word to each other and the student does not utter a sound or react in any way.

Moreover, the Committee heard from Principal Hodgins that, during her investigation regarding the toes incident, not one of the EAs that she interviewed indicated that the student’s behaviour had changed in any way after the alleged incident occurred. Nobody, aside from the Member, reported anything odd or suspicious in connection with the alleged toes incident. The Committee finds that the Member’s version of events regarding this incident is not credible.

Second, the Committee finds that there were at least two troubling inconsistencies with the Member’s evidence that diminished her credibility. The first of these inconsistencies relates to the Member’s version of the timing of the toes incident. The Committee heard evidence that the Member had documented important events and observations contemporaneously in her daily planner. The Member was initially insistent that the toes incident occurred on Friday, October 3, 2008. During her examination in chief, she explained that she had recorded the incident in one of her daily planners (see Exhibit 65) on the same day, shortly after the incident occurred. She further insisted that the toes incident occurred on a Friday because it bothered her so much that she went home for the weekend.

After further questioning during cross-examination and after College Counsel drew her attention to a second daily planner (see Exhibit 82) and to her letter of complaint to the School Administration (see Exhibit 70), the Member conceded that the toes incident must have actually occurred on Thursday, October 2, 2008 and not on Friday, October 3, 2008, as she had previously testified. The Committee was troubled by the fact that the Member was inconsistent with her evidence about such an important event. Even more concerning was the fact that the Member was equally insistent about both dates being accurate at different times during her testimony, when one was clearly wrong. This significant inconsistency called into question the Member’s credibility.

The second troubling inconsistency with the Member’s evidence relates to her versions of how the toes incident occurred. In her letter of complaint to the School Administration (see Exhibit 70), written within two weeks of the alleged incident, the Member wrote that Mr. Avery was “standing with both of his feet and full body weight pressing down firmly on the in-step of both [Student #1’s] feet.” During her examination in chief, however, the Member testified that Mr. Avery actually stepped on Student #1’s left foot using only one of his feet. The Member even demonstrated how Mr. Avery stepped on the student’s foot.

During cross-examination, when questioned about which of her versions was accurate, the Member conceded that Mr. Avery stepped on Student #1’s left foot with just one of his feet. In effect, the Member admitted that the information relating to the toes incident contained in Exhibit 70, which was her letter of complaint to the School Administration, was inaccurate. Given the potential ramifications of such a letter, the Member ought to have been especially diligent when drafting it and the Committee expects, at the very least, that the Member would have ensured the accuracy of her letter before submitting it.

The Committee was troubled that the Member’s account of the toes incident was different during her oral testimony than it was when she initially reported the incident. During her examination in chief, the Member described and demonstrated how Mr. Avery stepped on Student #1’s left foot using only one of his feet. The Member confirmed, during cross-examination, that this “one-foot” version of events was the accurate version. The Committee notes that the Member gave oral testimony more than five years after the alleged incident. Nonetheless, she maintained that her recollection of the incident (more than five years after the fact) was more accurate than the account that she had documented in writing only 12 days after the alleged incident. The Committee finds that the Member’s inability to consistently recount key events related to her allegations against Mr. Avery diminishes the reliability of her evidence.

Third, the Committee finds that the Member’s delayed reporting of the toes incident and her failure to follow up with Student #1 after the alleged incident call into question the reliability of the Member’s version of events. The toes incident was alleged to have occurred on October 2, 2008 but the Member did not report it until October 14, 2008. The Committee finds it hard to believe that a teacher would wait 12 days to report an incident of physical abuse carried out against a [XXX] [XXX] student. The Committee heard submissions from Member’s Counsel that the Member was a dedicated and diligent teacher who was passionate about helping students with [XXX]. It defies logic that such a caring teacher would fail to report such a serious incident for nearly two weeks.

Even if the Committee were to accept that the Member felt ostracized by her school community and that she believed that the School administration would not support her if she brought this alleged incident to its attention, it is reasonable to believe that the Member would have reported the incident to the police immediately. The Member made no such report.

In addition, the Committee finds it incredible that the Member would have done absolutely no follow-up, after the alleged toes incident, to determine how Student #1 was faring. The Member did not check the student for bruising and she did not ask other Program teachers or EAs if Student #1 showed signs of suffering after the incident. If a teacher had genuine concerns that one of her students had been physically abused, surely the teacher would follow up to ensure that the student was okay. The Member’s inaction following what she alleges was an incident of physical abuse raises significant doubt for the Committee concerning the reliability of this portion of the Member’s evidence.

The Committee carefully weighed the Member’s credibility against Mr. Avery’s credibility in arriving at its determination that Mr. Avery’s version of events was more likely than that of the Member. The Committee heard submissions from Member’s Counsel that Mr. Avery was not credible because he was not a very dedicated teacher. For example, Member’s Counsel submitted that Mr. Avery left the School without signing out on one occasion and further submitted that he would sometimes leave [XXX] class early.

Member’s Counsel submitted that Mr. Avery was not a credible witness because he was not completely forthright about his professional relationship with the Member. For instance, Member’s Counsel indicated that Mr. Avery claimed to have never worked with the Member, although the Committee heard evidence that the two teachers worked at a different school together for two years. Moreover, Member’s Counsel submitted that Mr. Avery was not credible because he was not forthright about whether and when the window above his classroom door was [XXX]. In essence, Member’s Counsel urged the Committee not to rely on Mr. Avery’s evidence regarding the toes incident because he had been less than forthright when testifying about other issues.

When weighing the Member’s credibility against that of Mr. Avery in order to determine whose version of events to accept regarding the toes incident, the Committee finds Mr. Avery’s evidence to be more credible. The Member’s evidence regarding this incident was implausible and inconsistent. The Committee was not persuaded that the issues regarding Mr. Avery’s credibility presented by Member’s Counsel were as concerning as those raised with respect to the Member’s credibility. The inconsistencies in the Member’s testimony were directly related to the toes incident. Her oral testimony contradicted her contemporaneous written records in several key areas. Ultimately, the Committee finds that Mr. Avery’s evidence regarding the toes incident was more credible than that of the Member.

The Committee further notes that at least five witnesses, including Ms. Bowman, Ms. Glazier, Mr. Stather, Ms. Kunabalasingam, and Student #2, three of whom were defence witnesses, all testified that they never witnessed any abuse of a physical nature between Mr. Avery and any student. They also indicated that they would have reported such abuse if they were aware of it.

The Committee therefore concludes that Mr. Avery’s version of the toes incident was more credible than that of the Member and that the College has met its burden of proving, on a balance of probabilities, that the Member falsely reported the toes incident.

The Committee further finds that the Member’s false reporting of the toes incident gives rise to a finding of professional misconduct. The Member’s allegations against Mr. Avery were very serious. She alleged that her colleague had physically abused a [XXX] student. These allegations had a significant negative effect on Mr. Avery’s career and his personal life. The Member sullied her colleague’s reputation and she did so without sufficient evidence upon which to base her allegations.

While the Committee recognizes that it is important to encourage teachers to report all incidents of physical abuse, the Committee found no evidence in this case to demonstrate that there was any incident of physical abuse that needed to be reported. Without diminishing the importance of the duty to report, the Committee notes that false reports can be extremely damaging. The Member, in this case, brought a groundless allegation of physical abuse against one of her colleagues. This is not the type of behaviour that the duty to report seeks to encourage.

The Inappropriate Touching Incident

The Committee finds that there was sufficient evidence to prove, on a balance of probabilities, that the Member falsely reported the inappropriate touching incident. The Committee further finds that the act of making this false report gives rise to a finding of professional misconduct.

The Committee heard conflicting evidence with regard to the inappropriate touching incident. According to the Member, she had reasonable grounds to suspect the sexual abuse or sexual misconduct of Student #1, and as a result, she reported Mr. Avery’s conduct to the School administration. The College, however, submitted that there was no evidence whatsoever that could have given rise to a reasonable suspicion of sexual misconduct on the part of Mr. Avery. According to College Counsel, the Member falsely reported that she observed Mr. Avery stroking Student #1’s hair and touching Student #1 on her shoulder at the School. Having carefully reviewed the evidence and submissions of both parties, the Committee finds that it is more likely than not that the Member falsely reported the inappropriate touching incident for the following reasons:

1. Mr. Avery had left the School before the inappropriate touching incident allegedly occurred;

2. the Committee heard from several witnesses who had viewed video surveillance footage recorded at the time of the alleged incident, and the footage provided no evidence that any inappropriate touching occurred between Mr. Avery and Student #1;

3. the Member presented inconsistent evidence regarding the location and timing of the alleged incident, and with regard to the date on which she reported the alleged incident, which calls into question the reliability of her version of events; and

4. the Member’s version of events is implausible and her delayed reporting calls into question the reliability of her version of events.

Before expanding on the reasons set out above, the Committee acknowledges that the threshold which triggers the duty to report the sexual abuse or sexual misconduct of a student is very low. If a teacher has reasonable grounds to suspect that a student has been sexually abused, that teacher has a duty to report the suspected activity to the appropriate authorities. This means that a teacher does not need to be certain that sexual misconduct involving a student has occurred before reporting the activity. The purpose of this low threshold is to ensure that students are protected at all times and to encourage teachers to report, in good faith, incidents of sexual misconduct when there are reasonable grounds to suspect such incidents.

It is essential, however, that a reporting teacher has reasonable grounds to suspect that an incident of sexual misconduct has occurred before the duty to report is triggered. The consequences of a false report are grave and can jeopardize a teacher’s career and livelihood.

In the case before this Committee, the Member had no reasonable grounds to suspect that Mr. Avery had committed any act of sexual abuse or misconduct against a student. Although the Member submitted that she had reasonable grounds to suspect that Mr. Avery had sexually abused Student #1, the Committee was not presented with sufficient evidence to prove that this was a reasonably held belief. For the reasons that follow, the Committee finds that the Member falsely reported the inappropriate touching incident.

1. Mr. Avery was not in the School at the time of the alleged incident

First, and most importantly, Mr. Avery was not in the School at the time that the alleged inappropriate touching incident occurred. The Member made a contemporaneous note in her journal that the inappropriate touching incident occurred on March 11, 2009 at approximately 1:45 p.m. (see exhibit 69). When she first reported the incident to Mr. Moura, she also told him that the incident had occurred at approximately 1:45 p.m. on March 11, 2009. Mr. Avery, however, left the School for the day at approximately 1:15 p.m. on March 11, 2009, which is 30 minutes before he was alleged to have inappropriately touched Student #1. The Committee was presented with video footage from the School’s surveillance system, which showed Mr. Avery leaving the School at approximately 1:15 p.m. and tracked him driving away after that.

The Committee also heard corroborating evidence from Ms. Glazier and Ms. Bowman, who confirmed that Mr. Avery was no longer in the School at the time of the alleged incident. The Committee is satisfied that, since Mr. Avery was not in the School at the time of the incident, he could not have committed the inappropriate touching as alleged by the Member at 1:45 p.m., which is when she maintained that the incident occurred.

Member’s Counsel submitted that because there was no time stamp on the video footage viewed by the Committee (see Exhibit 13), the Committee could not be certain that the video showing Mr. Avery leaving the School was actually recorded on the date and time in question (March 11, 2009 at 1:15 p.m.). The Committee notes, however, that no evidence was presented to indicate that the video was not, in fact, recorded on March 11, 2009 at 1:15 p.m., and Member’s Counsel did not lead evidence or make submissions that the video had been doctored or tampered with in any way. The Committee is confident that the video was recorded on March 11, 2009 at 1:15 p.m.

Member’s Counsel further submitted that Mr. Avery’s evidence with regard to the inappropriate touching incident was troublingly vague and should not be relied on because he did not give clear, cogent and convincing evidence about why he left the School early on March 11, 2009 at 1:15 p.m. and where he went. The Committee is not concerned that Mr. Avery could not remember exactly why he left the School at that time or where he went. The crucial point for the Committee is that Mr. Avery was not in the School at the time of the alleged incident. This fact was corroborated by several witnesses, including Ms. Glazier, Ms. Bowman, Mr. Moura, Mr. Lopes, and Principal Hodgins.

2. Surveillance footage indicated that no inappropriate touching occurred between Mr. Avery and Student #1

The Committee heard from several witnesses who had viewed video surveillance footage recorded at the time of the alleged incident, and the footage provided no evidence that any inappropriate touching occurred between Mr. Avery and Student #1. Although the Committee did not have the opportunity to view the surveillance footage, it heard testimony from several witnesses who described what they had observed when they viewed the surveillance footage.

The Committee recognizes that Member’s Counsel took issue with the Committee relying on video evidence that it did not see. Member’s Counsel submitted that the contents of the surveillance footage constituted hearsay evidence. She further submitted that the Committee should not rely on the witnesses’ descriptions of the video’s contents, because the witnesses were biased and the evidence that they gave was not clear, cogent and convincing.

The Committee finds that the testimony of the witnesses who viewed the surveillance footage before it was overwritten is admissible and the Committee gives considerable weight to it. The Committee accepts the submission of College Counsel that this evidence is not the same as traditional hearsay evidence. Member’s Counsel had the opportunity to cross-examine each of the witnesses about what they observed when they viewed the surveillance footage. Mesfin and Pires provide further authority for the admissibility of this type of evidence.

The Committee also finds that the witnesses’ descriptions of the video’s contents were reliable and it does not accept that the witnesses were biased, as submitted by Member’s Counsel. According to Member’s Counsel, many of these witnesses had formed a clique that included Mr. Avery and excluded the Member. If the Committee were to accept the Member’s claim that the witnesses were biased and part of a clique, it would have to accept the underlying implication that all of these witnesses were prepared to jeopardize their careers by covering up an incident of sexual abuse. Furthermore, the Committee would have to accept that all of these witnesses were prepared to lie under oath in order to protect a relatively new colleague, who was alleged to have been involved with the physical and sexual abuse of a [XXX] student. The Committee does not accept this clique theory and accordingly finds that the witnesses were not biased and that their testimony was reliable.

According to Member’s Counsel, Mr. Canam’s testimony, in particular, was inconsistent and he was not a credible witness. Even if the Committee were to discount Mr. Canam’s testimony regarding the surveillance footage, however, there were at least three other credible witnesses who reviewed the surveillance footage and did not see Mr. Avery and Student #1 together at any time on March 11, 2009.

Despite minor inconsistencies in the witnesses’ descriptions of what they had seen in the surveillance footage, the Committee finds that their accounts were reliable. The Committee heard submissions from Member’s Counsel that the video evidence should not be relied on because many of the witnesses who had viewed the videos were not consistent with their accounts of what they saw. Most important for the Committee, however, was the fact that none of the witnesses who viewed the surveillance footage saw Mr. Avery and Student #1 together in the hallways at any time on March 11, 2009.

All of the witnesses who viewed the surveillance footage were looking specifically for evidence of any interaction between Mr. Avery and Student #1. The Committee is not troubled by the fact that the witnesses were not perfectly consistent with their observations of others in the hallways, because their primary focus was to track the movements of Mr. Avery and Student #1. The Committee is also not concerned that the School administrators viewed different portions of the surveillance footage. In any thorough investigation, it would not be unusual for different investigators to be tasked with looking at different parts of the evidence. The Committee finds that all of the witnesses who viewed the surveillance footage gave consistent evidence that Mr. Avery and Student #1 were not seen together at any time on March 11, 2009.

The Committee finds that the fact that the hallways were relatively quiet during exam period lends further credibility to the witnesses’ observations regarding the surveillance footage. The Committee does not accept the submission of Member’s Counsel that, because the hallways were relatively empty, Mr. Avery took advantage of this situation to sexually assault a student. There was insufficient evidence to substantiate this claim. Rather, the Committee finds that the empty hallways would have made it easier for those investigating the surveillance footage to identify any unusual activity in the hallways. The fact that none of the witnesses observed any unusual activity on the surveillance footage demonstrates that Mr. Avery was not involved in the inappropriate touching incident, as alleged.

Moreover, although Member’s Counsel urged the Committee to be wary of the video evidence because there may have been blind spots that the surveillance footage did not capture, the Committee was unconvinced by this submission. First, both Mr. Avery and Student #1 have large physical frames. It is unlikely that these two larger adults would have completely escaped the video camera’s view in the relatively small [XXX]. Second, even if the Committee were to accept that Mr. Avery and Student #1 could have been hidden from view in the [XXX], the surveillance footage would have captured them entering and exiting the [XXX]. This was not observed by any of the witnesses who viewed the surveillance footage.

3. Inconsistencies in the Member’s testimony

The Committee was concerned that the Member was the only person in this entire case who claims to have witnessed the inappropriate touching incident, yet her testimony in this regard contained several key inconsistencies. The Member presented inconsistent evidence regarding the location and timing of the alleged incident, and with regard to the date on which she reported the alleged inappropriate touching incident. These inconsistencies caused the Committee to question the reliability of her version of events.

The Member’s evidence regarding the location of the alleged inappropriate touching incident has changed since she initially reported the incident. The Committee initially heard evidence that this incident happened in the hallway, against a bank of lockers, as was noted in the police report (see Exhibit 83). The Member subsequently testified that the incident occurred in the [XXX] outside of the Member’s office. Those are two very different places.

Member’s Counsel cautioned the Committee not to rely on the police report as it contains untested hearsay evidence regarding the location of the incident. The police report was prepared by more than one officer, the Committee was not presented with the officers’ interview notes that would have formed the basis of the report, and the report was prepared based on information gathered not solely from the Member. The Committee agrees with these submissions and has placed little weight on Exhibit 83; it does not conclude that the inconsistencies regarding the location of the incident as stated in the police report are necessarily attributable to the Member.

Nonetheless, the Committee had grave concerns regarding the Member’s inconsistencies as to the timing of the inappropriate touching incident. These inconsistencies called into question the truthfulness of her version of events. The Committee was presented with a page from the Member’s journal dated March 11, 2009 (see Exhibit 69), in which she made a contemporaneous note indicating that the inappropriate touching incident took place at approximately 1:45 p.m. (which was toward the end of her teaching period). The Committee heard evidence from Mr. Moura, Principal Hodgins, and Mr. Lopes that the Member had also initially reported to them that the incident occurred at approximately 1:45 p.m.

Over the course of these proceedings, however, the Member’s testimony regarding the timing of these events has changed. It is troubling that once the Member found out that Mr. Avery had left the School by 1:15 p.m. on March 11, 2009, she departed from her prior evidence that the incident occurred at 1:45 p.m. and began to move the clock back on the timing of the incident. The Member attempted to justify this change in timing by suggesting that she was not wearing a watch and therefore may have been inaccurate with her initial time estimate of 1:45 p.m.

While the Committee is prepared to accept that the Member may have been slightly off with her initial time estimate, the Committee cannot accept that the Member would have gotten the timing of the incident wrong by over 30 minutes. Even without a watch, the Member should have been aware of whether the incident occurred towards the beginning or the end of her teaching period, and she would have recorded her time estimate accordingly in her journal (see Exhibit 69). The fact that the Member changed her evidence so significantly regarding such a key event calls into question her credibility. The Committee therefore finds it difficult to rely on the Member’s account of the inappropriate touching incident.

Furthermore, the Committee was concerned with the Member’s inconsistent evidence regarding the date on which she reported the inappropriate touching incident to the School administration. The Member initially testified that she had reported the incident on March 23, 2009. She was confident that this was the correct date, because it was her first day back at school following the March break. Subsequently, under cross-examination and after reviewing the E-mail from Angela Grogan dated March 26, 2009 to Manny Moura (Exhibit 86), the Member acknowledged that she had actually reported the incident to the School administration on March 25, 2009. The Committee is concerned that the Member was equally insistent that each of these dates were accurate at different times during her testimony, when one was clearly wrong. The Committee finds that this inconsistency calls into question the Member’s credibility and the reliability of her version of events.

Given that the Member was the only person who claims to have witnessed Mr. Avery engaging in the inappropriate touching incident, but that her evidence regarding the timing of the incident and the timing of her report of the incident contained significant inconsistencies, the Committee had trouble relying on her account of the incident.

4. The Member’s version of events is implausible

Finally, the Member’s account of the inappropriate touching incident is implausible. According to the Member, she left her classroom to get supplies from her office. In the short period of time that she was walking from her classroom to her office, she claims to have seen Mr. Avery stroking Student #1’s hair and touching her on the shoulder in the [XXX]. By the time she had collected her supplies, which would not have taken long, Mr. Avery and Student #1 had disappeared from the [XXX]. The Member speculated that they may have snuck away into another classroom, but she did not follow up to see where they went.

The Committee cannot accept this narrative for several reasons. First, the Committee heard evidence that Student #1 was difficult to move, particularly if she did not want to go somewhere. It is difficult to believe that Mr. Avery would have been able to disappear from the [XXX] with Student #1 so quickly after they were spotted by the Member. Second, there was no video evidence of Mr. Avery and Student #1 retreating from the [XXX] into another classroom as the Member had speculated. It is unreasonable to believe that the surveillance footage would not have captured two large individuals moving down the hallway alone into a classroom, if this had truly happened. Third, the Member’s response to what she allegedly witnessed calls into question the truthfulness of her account.

If the Member had witnessed one of her colleagues engaging in an act of sexual misconduct with a [XXX] student, it is unreasonable to believe that the Member would not have responded in some way, shortly thereafter. The Member, however, waited approximately two weeks to report this incident to the School administration and she did not follow up with Student #1 after the alleged incident. In fact, after allegedly witnessing Mr. Avery take advantage of Student #1, the Member returned to her classroom, she did not tell anyone what she saw, and she did not try to find Mr. Avery and the student in order to attempt to put a stop to the misconduct or to check whether the student was safe.

The Committee heard submissions from Member’s Counsel that the Member was a dedicated and diligent teacher who was passionate about helping students with [XXX]. Given her response to what she claims to have witnessed, the Committee cannot accept that the Member saw what she claims to have seen. It defies logic that a teacher would witness such an incident and would do nothing to ensure the safety of the [XXX] student. That she waited to report such a serious incident for approximately two weeks also calls into question the reliability of her account.

Finally, the Committee heard submissions from Member’s Counsel that Student #1’s increased sexualized behaviour was linked to Mr. Avery’s conduct. The Committee does not accept that there is a causal link between the reported change in Student #1’s behaviour and Mr. Avery’s alleged conduct. The Committee agreed with College Counsel that there was insufficient evidence linking Mr. Avery to these sexualized behaviours, no expert evidence was presented on this issue, and there are any number of reasons why Student #1 may have begun to display behaviour that was described by some witnesses as sexualized.

Conclusions regarding the Inappropriate Touching Incident

For the reasons outlined above, the Committee finds that the College has proven, on a balance of probabilities, that the Member falsely reported the inappropriate touching incident to the School administration. Mr. Avery was not in the School at the time of the alleged incident and the School’s surveillance footage did not capture Mr. Avery and Student #1 together at all on March 11, 2009. The Member was the only person who claims to have witnessed the inappropriate touching incident, but her evidence was both inconsistent and implausible. Accordingly, the Committee concludes that the Member did not have reasonable grounds to suspect the sexual abuse of a student and finds that the Member falsely reported the inappropriate touching incident to the School administration. The fact that Mr. Avery had previously complained to School administration about the Member having called him a liar adds to the Committee’s belief that the Member did not report Mr. Avery in good faith.

The Committee further finds that the Member’s false reporting of the inappropriate touching incident gives rise to a finding of professional misconduct. The Member’s allegations against Mr. Avery were extremely serious. She alleged that her colleague had engaged in an act of sexual misconduct with a [XXX] student. These allegations have had a significant negative impact on Mr. Avery’s career and his personal life. By leveling groundless allegations against her colleague, the Member tarnished Mr. Avery’s reputation inappropriately and unprofessionally.

While the Committee reiterates that teachers must report when they have reasonable grounds to suspect that a student has been sexually molested or sexually exploited or is at risk of same, the Committee did not find sufficient evidence in this case to demonstrate that there was any incident of such sexual activity to be reported. Without diminishing the importance of the duty to report, the Committee notes that false reports can be extremely damaging. The Member, in this case, brought a groundless allegation of sexual misconduct against one of her colleagues. This is not the type of behaviour that the duty to report seeks to encourage.

Ultimately, the Committee concludes that the facts of this case support a finding of professional misconduct. In particular, the Committee finds that the Member’s false reports of the toes incident and the inappropriate touching incident give rise to a finding of professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: March 13, 2015

Pauline Smart

Chair, Discipline Panel

______________________________ Hanno Weinberger, OCT

Member, Discipline Panel