Ontario College of Teachers v. Kosonic, 2015 ONOCT 46

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kosonic, 2015 ONOCT 46

Date: 2015-10-01

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

Rory Blake Kosonic, a member of the Ontario College of Teachers

PANEL: Jean-Luc Bernard, OCT, Chair Sara Nouini, OCT Alexander (Sandy) Bass, OCT

BETWEEN: )

) Alyssa Brierley,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

• and - )

) Heather Alden,

RORY BLAKE KOSONIC ) Ontario Secondary School Teachers’

(CERTIFICATE # 575556) ) Federation,

) for Rory Blake Kosonic

) Erica Richler,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: September 4, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 4, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 20, 2015 (Exhibit 1) was served on Rory Blake Kosonic (the “Member”), requesting his presence on March 6, 2015 to set a date for a hearing and specifying the charges. The hearing was subsequently set for September 4, 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 subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

(b) he 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);

(c) 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);

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

(e) he practised the profession while in a conflict of interest, contrary to Ontario Regulation 437/97, subsection 1(26).

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that, subject to ratification by the Committee, an agreement had been reached between the parties and a Memorandum of Agreement (Exhibit 3) dated September 1, 2015 (the “MOA”) was introduced, which provides the following:

Agreed Statement of Facts

The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.

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

2. During 2012-2013 academic year, and while employed by the Board, the Member operated a multi-level marketing business (the “business”) involving a U.S.-based wellness beverage company by the name of Vemma Nutrition Company (“Vemma”).

3. The Member solicited student involvement and membership in the business. In order to participate, students were required to pay a one-time fee of $500.00, after which students were required to execute an agreement with Vemma and make monthly purchases of business-related products.

4. The Member also required parents of involved students to sign documents guaranteeing payments to cover amounts due by their minor children for the monthly purchases of business-related products.

5. In the course of operating the business, the Member contacted students via email, text and by phone, often on a daily basis, during and after school hours, and late on school nights. The Member also texted students during the school day for “quick communication” and to “coordinate schedules” in order to have students attend meetings held during lunch period or after school.

6. The Member held meetings, attended by students, related to the business in the School, in his home, in others’ homes and at a local lounge.

7. In a telephone conversation with a student involved in the business, the Member instructed the student to provide his parents’ credit card number within 29 minutes, “otherwise the deal would be off.” According to the Member, he made the phone call on behalf of another student who was participating in the business.

8. On January 9, 2013, the Member sent an email to involved students, referring to the business as “homework.”

9. On January 15, 2013, the Member sent an email to a student who had expressed an interest in leaving the business. In his email, the Member asked the student to meet him at lunch to “discuss options” to stay in the business.

10. In the course of operating the business, the Member collected money from students, and acknowledges that there was a link between the participation of the students in the company and his own profit-making. However, the Member is unable to confirm how much money he had made as a result of the students’ participation as it was partially premised on “residuals” and “auto-ship” points.

11. Students involved in the business and their parents reported that they believed that the business was sanctioned by the school. In a meeting between the Member, the Principal, and the Vice-Principal held on or about March 25, 2013, the Member acknowledged that he had indicated to students that he “was going to talk to [the Principal] about the business.” He further admitted that he led them to understand he would be speaking to the Principal and that he realizes that “probably the boys thought he had.” He also agreed that parents and students probably thought the business was school sanctioned even though he did not ever tell them directly that it was.

12. The Member was assigned to home duties on or about January 31, 2013 and the Member subsequently resigned his employment effective September 30, 2013.

13. The Member does not intend to return to teaching. After resigning from his employment as a teacher, the Member started his own small business working as a strength and conditioning specialist and personal trainer. In this capacity, the Member provides programs for youth and adolescent athletes in both the Peel District School Board and Toronto District School Board. According to the Member, he relies upon the referrals and testimonials of former colleagues and employees of both school boards to secure business.

14. By this document, the Member pleads guilty to professional misconduct as alleged in the Notice of Hearing, issued on January 20, 2015.

15. The Member voluntarily admits the above particulars, for the purpose of this proceeding only, and understands that by doing so, he is waiving the right to require the College to prove the case against him and the right to a contested hearing.

Joint Submission on Resolution

The Parties agree to resolve the matter as follows:

16. The Parties agree and undertake that upon ratification of this MOA, there shall be no further action taken in this administrative proceeding, no appeal of any or all of the terms of this agreement, and no application for judicial review, providing the terms of this MOA are adhered to.

17. The Parties agree and understand that if any phrase or paragraph of this MOA is deemed null and void, the MOA shall be read as though the phrase or paragraph that was stricken from the MOA and the amended MOA shall remain in force and effect.

18. The Member agrees and understands that upon ratification of this MOA, the Discipline Committee shall find him guilty of professional misconduct and he shall receive a reprimand from the Committee.

19. The Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the guilty plea will be accepted, the finding of guilt will be made, and the penalty or order will be imposed.

20. The Member shall appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the College’s public Register. The reprimand shall be delivered at the offices of the College located at 101 Bloor Street West, Toronto, Ontario.

21. The Member agrees and undertakes to, prior to seeking or engaging in employment where a Certificate of Qualification and Registration is required, successfully complete, at his own expense, a course(s) of instruction covering professional ethics, pre-approved by the Registrar. The Member’s Certificate of Qualification and Registration will be subject to Terms, Conditions or Limitations.

22. The Member agrees and undertakes to provide the Registrar with written confirmation of his successful completion of this course(s), prepared by the course practitioner(s), within 30 calendar days of completion. The course practitioner will also confirm that he/she has reviewed the Decision, Reasons for Decision and Orders of the Discipline Committee and MOA before commencing the course and that, based on his/her interactions with the Member, he/she is satisfied that the Member understands that his conduct was inappropriate.

23. The Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the Public Register, maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996. This information will also be contained on the Certificate of Qualification and Registration, public register, and Statement of Professional Standing. There may be amendments made to these documents and the Public Register to reflect this agreement between the parties, including amendments to the Member’s Status, Status History and Terms, Conditions or Limitations.

24. The Member agrees and understands that the College shall publish a summary of the complaint and its resolution as contained in this MOA. Such publication shall be made in the College’s official publication, Professionally Speaking/Pour parler profession, on the College’s website, and in any other manner the Registrar deems appropriate. The Discipline Committee shall determine whether publication shall include the Member’s name.

25. The Member agrees and understands that upon ratification of this MOA, the College shall make the Decision, Reasons for Decision and Orders of the Discipline Committee available for review by the public in the College’s Margaret Wilson Library, on the College’s website and in any other forum the Registrar deems appropriate.

26. The Member agrees and understands that upon ratification of this MOA, the College may submit a copy of the Decision, Reasons for Decision and Orders of the Discipline Committee to Quicklaw and/or any other on-line legal database.

27. The Member agrees and understands that this MOA is the entire agreement between him and the College and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA.

28. Each party may sign a separate copy of this MOA which, when so signed and delivered, shall be an original copy even though not signed by the other party. All such separately signed copies shall together constitute evidence of all parties’ consent to be bound by this agreement.

DECISION

Having examined the exhibits filed, and based on the MOA, the Member’s guilty plea and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the MOA. The Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18), 1(19) and 1(26).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 of the MOA and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18), 1(19) and 1(26).

Paragraphs 3, 5, 6, 9 and 11 of the MOA demonstrate that the Member failed to maintain the standards of the profession contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 4, 10 and 11 of the MOA demonstrate that the Member failed to comply with the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 3, 4, 5, 6, 7, 8, 10 and 11 of the MOA demonstrate that the Member 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).

Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the MOA demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19) and demonstrate that the Member practised the profession while in a conflict of interest, contrary to Ontario Regulation 437/97, subsection 1(26).

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. Moreover, publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner. Publication without the name of the Member might erode the public trust and might give the impression that the College was attempting to shield members from public scrutiny. College Counsel noted that all other aspects of the discipline process are open and transparent, including posting the Notice of Hearing on the Public Register, posting decisions on the College website and linking the decision of the Discipline Committee to the Member’s Certificate of Qualification and Registration.

College Counsel referred the Committee to three cases involving professional misconduct: Ontario College of Teachers v. Grant, 2015 LNONCTD 12, Ontario College of Teachers v. Guilherme, 2014 LNONCTD 89, and Ontario College of Teachers v. Scolaro, 2014 LNONCTD 127. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all three instances.

Submissions of Member’s Counsel

Member’s Counsel reminded the Committee that it had the discretion to publish or not publish the Member’s name and that there was no presumption in favour of publication of the Member’s name.

Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. The objectives of resolution, including specific deterrence, general deterrence, and transparency will be met through the reprimand of the Member and the recording of the fact of the reprimand on the Register. Further, the decision of the Committee will be publicly available in the College library, will be published on the College website and will be linked to the Member’s certificate.

Member’s Counsel added that the following mitigating factors should weigh against publishing the Member’s name: this is the Member’s first appearance before the Committee; the Member acknowledged his guilt and agreed to receive a reprimand and to take coursework should he return to teaching; the Member is not at risk to reoffend as he has voluntarily removed himself from the profession; and publication with name would result in severe collateral damage to the Member as he establishes his own small business, where he relies on referrals from the Boards.

Member’s Counsel referred the Committee to three cases: Ontario College of Teachers v. Mukts, 2013 LNONCTD 98, Ontario College of Teachers v. Daye, 2011 LNONCTD 3, and Ontario College of Teachers v. Woltman, 2015 LNONCTD 43. According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

RESOLUTION

The MOA contains a Joint Submission on Resolution. The Committee accepts the Joint Submission on Resolution presented by the parties and makes an order in accordance with its terms, as set out in paragraphs 20, 21, 22, 23 and 24 of the MOA 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, without the name of the Member.

REASONS FOR RESOLUTION

The Committee accepts the resolution 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 resolution proposed in the Joint Submission on Resolution 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 solicitation of students in the operation of his multi-level marketing business on and off school premises, during and after school hours, warrants a reprimand by his peers. The Member, by involving students in a business that was not sanctioned by the School, and that he profited from, crossed the professional boundaries of a student/teacher relationship. The reprimand will allow the College to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the course of instruction regarding professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his duties as a teacher and will help him to make better decisions in his professional practice, should he return to teaching.

Having considered the parties’ submissions and the jurisprudence presented with respect to publication with name, the Committee finds that publication without the name of the Member is warranted in the circumstances of this case. The Committee finds that the cases presented by College Counsel were distinguishable on their facts from the Member’s case and were therefore of limited assistance.

There were several mitigating factors in this case that weighed against publication with name. First, the Member has never been the subject of discipline proceedings in the past; this was his first appearance before the Committee. Second, the likelihood of the Member reoffending is low. He has voluntarily removed himself from the teaching profession and has no intention of returning to teaching. Third, the Member has undertaken to complete a course of instruction regarding professional ethics before returning to teaching, if ever. Fourth, there was no evidence of a negative impact on students or parents by the operation of this business. The parents supported this initiative, agreed to pay membership fees to the company, Vemma, on behalf of their children and to purchase products directly from the company.

After resigning from his employment as a teacher in September 2013, the Member started a business in which he works as a strength and conditioning specialist and personal trainer for youth and adolescent athletes in both the Peel and Toronto District School Boards. The Committee concurs with Counsel for the Member that publication of the name of the Member could have a negative impact on the Member’s ability to continue his business as he relies upon the referrals and testimonials of former colleagues and employees of the Boards to secure his business.

The Member was cooperative throughout the disciplinary process and admitted his guilt, which conserved significant time and judicial resources. Given the circumstances of the Member’s case, the Committee finds that the penalty objectives of deterrence and transparency will be adequately met without publishing the Member’s name in the College’s official publication. The Committee notes that its finding and orders will still be published on the College’s website.

The Committee is satisfied that the resolution in this matter is appropriate under the circumstances and serves and protects the public interest.

Date: October 1, 2015

Jean-Luc Bernard, OCT

Chair, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Alexander (Sandy) Bass, OCT

Member, Discipline Panel