Ontario College of Teachers v. Kelly, 2015 ONOCT 43

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kelly, 2015 ONOCT 43

Date: 2015-10-28

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

AND IN THE MATTER OF a discipline proceeding against

John Wilton Kelley, OCT, a member of the Ontario College of Teachers.

PANEL: Thomas (Tom) Potter, Chair

Irene Cheung, OCT

Louis Sloan, OCT

BETWEEN: ) Caroline Zayid,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

– and – )

JOHN WILTON KELLEY ) Heather Alden

(CERTIFICATE #401648) ) and Kirsty Niglas-Collins

) Student-at-Law,

) Ontario Secondary School

) Teachers’ Federation,

) for John Wilton Kelley

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: October 19, 2015

DECISION, REASONS FOR DECISION AND ORDERS

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

A Notice of Hearing dated January 12, 2015 (Exhibit 1) was served on John Wilton Kelley (the “Member”), requesting his presence on February 10, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 19, 2015.

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

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teacher’s Act, 1996 (the “Act”) in that:

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

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

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

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

(e) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

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

At the hearing on October 19, 2015, Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b), (c) and (d) of the Notice of Hearing be withdrawn. The Committee granted the request.

STATEMENT OF UNCONTESTED FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. At all material times, John Wilton Kelley was a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2010-2011 academic year, the Member taught Grade [XXX]. In January or February 2011, a [XXX] year old female student in the Member’s class (the “Student”) requested the Member’s assistance regarding bonus homework questions. The Member provided this Student, as well as other students in the class, with his email address so they could contact him for this purpose.

4. In March or April, when the Student requested the Member’s assistance with a question, the Member emailed her back to say that it was too complicated to explain by email. The Student asked the Member if she could call him, and he provided her with his home phone number. After they worked on the [XXX] question over the phone, the Member asked her where she intended to apply for university. They chatted for about half an hour.

5. Within a few weeks, the Student began to telephone the Member regularly. During their conversations, the Student opened up to the Member about personal and family-related issues. He never telephoned her, but when she called him he would listen and give her advice about how to resolve her problems. The Member understood that the Student saw him as a “confidante”.

6. On at least five occasions in May and June 2011, the Member drove the Student in his vehicle to the School, at her request. He also drove her home from the School approximately 10 times, at her request, and drove her to the [XXX], which was just up the street from where they both lived, twice.

7. In May 2011, the Student visited the Member at his apartment on three occasions. On the first occasion, she appeared at his door on a Saturday morning. He was surprised to see her. She was upset and wanted to talk. The Member let her in and after a brief visit, the Member drove her home.

8. On the second occasion, the Student telephoned the Member and asked him what he was doing. He told her he was about to watch a movie. She showed up at his door approximately ten minutes later and asked to watch it with him. The Member permitted her to stay and watch the movie with him, and when it was over he drove her home.

9. On the third occasion, the Student appeared at the Member’s door with her [XXX] year old cousin and asked the Member if they could hang out with him for a bit. He let them in and they stayed for approximately one hour playing games on the Student’s iPad.

10. In late June, the Student graduated and returned to [XXX]. Approximately three days after she left Canada, the Student telephoned the Member at home. They spoke for a few minutes only because of the expense involved for the Student to call him. The Member used a free or inexpensive telephone service, so he suggested that she provide him with her number, and he would call her back. This became their pattern – the Student would call the Member and ask him to call her back. He never initiated a phone call to the Student, but returned her calls at her request.

11. On or about June 26, 2012, the Member was advised to remain at home with pay until further notice, pending an investigation into allegations that he engaged in an inappropriate personal relationship with a female student, and to refrain from discussing the allegations and/or pending investigation with colleagues, students, or parents. During the summer months, the Member and a [XXX] year old former female student of his who graduated from the School in June 2012, met at the School twice to go jogging, following which he drove her home.

12. By letter dated June 17, 2013, the Member was informed that Board administrators concluded he had engaged in inappropriate activities for the purpose of establishing a personal relationship with a female student. He was advised that he was suspended without pay or benefits, effective June 17, 2013, pending a recommendation for his dismissal from employment. By letter dated June 20, 2013, the Member was advised that his employment had been terminated by the Board. Attached to Exhibit 2 at Tab “B” is a copy of each letter.

PLEA OF NO CONTEST

13. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

14. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(18) [unprofessional], and 1(19).

15. By this document the Member states that:

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

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

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

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(f) he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee; and

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

16. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

17. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Statement of Uncontested Facts and Plea of No Contest, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional], and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional] and 1(19).

Paragraphs 3 through 11 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member breached Ontario Regulation 437/97, subsections 1(5), 1(18) and 1(19) as set out in the Notice of Hearing.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of one month, with the suspension having already been served from June 17, 2013, to July 17, 2013, and the fact of the suspension is to be recorded on the Register;

3. direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues, subject to the following conditions:

(i) within 30 days of the date of the Decision, Reasons for Decision and Orders of the Discipline Committee, the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

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

(i) the Member has successfully completed the course and the progress of the Member with respect to addressing the outlined goals of the course.

4. direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publishing the Member’s name in Professionally Speaking/Pour parler profession serves a very important deterrent function for both the Member and the teaching profession as a whole. College Counsel submitted that publication with name is the College’s way to communicate that this type of behaviour will not be tolerated. Furthermore, College Counsel submitted that publication with name ensures the transparency of the discipline process and demonstrates that the College governs itself in the public interest.

College Counsel referred the Committee to three cases involving similar boundary violation issues: Ontario College of Teachers v. Grant, 2015 LNONCTD 12 (“Grant”); Ontario College of Teachers v. Congi, 2014 LNONCTD 40 (“Congi”); and, Ontario College of Teachers v. Bussineau, 2014 LNONCTD 79 (“Bussineau”). College Counsel submitted that publication with name was ordered in all of these instances.

Submissions of the Member’s Representative

Counsel for the Member was present, in addition to Ms. Niglas-Collins, a student-at-law (the “Member’s Representative”), who made submissions on behalf of the Member. Students-at-law have a right of appearance at the College. The Member’s Representative submitted that publication with the name of the Member is not warranted in this case, and that the proposed suspension is more than sufficient in the circumstances.

The Member’s Representative submitted that the three cases presented by College Counsel were distinguishable on their facts and should not be relied on by the Committee because the Member’s conduct was less serious than the conduct in each of those cases. In Grant, the member’s behaviour involved recruiting students for his modeling camp and other inappropriate behaviour that was repeated and ongoing over an extended period of time. In Congi, the matter was contested and the member did not take previous coursework. In Bussineau, there was explicit sexual content contained in text messages between the member and a student.

The Member’s Representative submitted that, for conduct at the lower end of the professional misconduct spectrum, publication with name is unnecessary since other deterrents already exist. For instance, the fact of the reprimand is recorded on the Register, and a hyperlink is provided in Professionally Speaking/Pour parler profession that links to copies of full decisions, which include members’ names, on the College’s website. Furthermore, it was submitted that by pleading no contest in this matter and by not contesting the facts, the Member accepted responsibility for his actions and spared witnesses from testifying. The Member’s Representative further submitted that the Member has no prior history of professional misconduct and has already taken a course regarding boundary violations.

The Member’s Representative urged the Committee to rely on the following 13 cases when determining the issue of publication: Ontario College of Teachers v. McCalla, 2015 LNONCTD 53 (“McCalla”); Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97 (“Legros-Stewart”); Ontario College of Teachers v. Gowans, 2014 LNONCTD 48; Ontario College of Teachers v. Williams, 2013 LNONCTD 77; Ontario College of Teachers v. Day, 2011 LNONCTD 3; Ontario College of Teachers v. De Marchi, 2011 LNONCTD 5 (“De Marchi”); Ontario College of Teachers v. Tallarico, 2011 LNONCTD 12 (“Tallarico”); Ontario College of Teachers v. Palmateer, 2010 LNONCTD 12; Ontario College of Teachers v. Gagnon, 2009 LNONCTD 31; Ontario College of Teachers v. Lonardi, 2008 LNONCTD 40; Ontario College of Teachers v. Hall, 2013 LNONCTD 39; Ontario College of Teachers v. Klatt, 2006 LNONCTD 15; and, Ontario College of Teachers v. Byer, 2013 LNONCTD 7.

The Member’s Representative referred the Committee to the facts in four of the above cases regarding boundary issues and reminded the Committee that in all 13 cases, publication with name was not ordered. In McCalla, the member took full responsibility for her actions which were found to be at the lower end of the spectrum. In Legros-Stewart, the Member had a lengthy career, had no prior discipline history at the College and took full responsibility for her conduct which was not egregious. In De Marchi, the boundary violations were also minimal and the member’s risk of recidivism was, similarly, low. Finally, in Tallarico, the member had no prior history of professional misconduct, was unlikely to reoffend, and had already completed coursework at the time of the hearing, like the Member in this case. The Member’s Representative urged the Committee to follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession.

Reply Submissions of College Counsel

In reply, College Counsel submitted that, although the Member did not contest the facts contained in the Statement of Uncontested Facts and Plea of No Contest, and thereby took responsibility for his actions, as an experienced teacher of 15 years, the Member should have “known better”. With respect to the jurisprudence presented by the Member’s Representative, College Counsel submitted that each case is different and that the facts involved in this case, in and of themselves, warrant publication with name.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The Committee was troubled that the Member developed an inappropriate relationship with the Student and continued that relationship even after the Student returned to [XXX]. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

Given the severity of the Member’s conduct, the Committee finds that a one month suspension is reasonable and appropriate. The Committee has directed the Registrar to suspend the Member retroactively, to coincide with the Board’s suspension which the Member has already served. The recording of the suspension on the Register will serve as a specific deterrent to the Member and a general deterrent to other members of the teaching profession.

The Committee finds that the course of instruction regarding appropriate boundaries and boundary violation issues will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students. Moreover, the syllabus for the proposed course, which will specifically address the Committee’s concerns regarding the Member’s professional misconduct, must be provided to the Registrar for approval within 30 days of the date of this Decision, Reasons for Decision and Orders. This condition will ensure that the course appropriately addresses the Member’s misconduct. In addition, the Member is required to submit to the Registrar written evidence from the course practitioner that the course has been successfully completed. This condition will ensure that the Member has properly completed this rehabilitative process.

After carefully considering the submissions made by both College Counsel and Member’s Counsel, the Committee determined that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. When professional boundaries are crossed, it undermines the public’s confidence in the teaching profession. Accordingly, publication with name is an opportunity for the College to publicly denounce such behaviour.

Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Furthermore, publication with name will inform the public and the teaching profession that members of the profession are expected to act with integrity at all times.

Finally, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: October 28, 2015

Thomas (Tom) Potter

Chair, Discipline Panel

Irene Cheung, OCT

Member, Discipline Panel

Louis Sloan, OCT

Member, Discipline Panel