Ontario College of Teachers v Lavigne, 2015 ONOCT 49

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Lavigne, 2015 ONOCT 49

Date: 2015-06-12

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

AND IN THE MATTER OF a discipline proceeding against Joseph Robert Marc Lavigne, OCT, a member of the Ontario College of Teachers.

PANEL: Monique Lapalme Arseneault, Chair Darlene Mead, OCT Louis Sloan, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Dina Awad, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

– and –

JOSEPH ROBERT MARC LAVIGNE (CERTIFICATE #200746) Karen Hamway, Gowling Lafleur Henderson LLP, for Joseph Robert Marc Lavigne Renée Kopp, Jones LLP, Independent Legal Counsel

Heard: April 29, 2015

DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on April 29, 2015 at Toronto.

A Notice of Hearing, dated January 28, 2014 (Exhibit 1), was served on Joseph Robert Marc Lavigne (“the Member”) requesting his attendance before the College’s Discipline Committee on February 27, 2014 to set a date for a hearing. The hearing was subsequently set for April 29, 2015.

The Member was present at the hearing.

ALLEGATIONS

IT IS ALLEGED that Joseph Robert Marc Lavigne is guilty of professional misconduct as defined in subsection 30(2) of the Act in that:

(a) he failed to maintain the standards of the profession, contrary to OntarioRegulation 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).

AGREED STATEMENT OF FACTS

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

1. Mr. Lavigne is a member of the College in good standing. A copy of the information concerning the Member as it appears [on the public registry] of the Ontario College of Teachers is attached to these presents as Appendix A in Exhibit 2.

2. At all material times, the Member was employed by the Conseil scolaire public du Nord-Est de l’Ontario (the “Board”) as a principal. In 2012, the Member was principal of Northern Secondary School (“the School”) in Sturgeon Falls.

3. At all material times, the Board had a policy and administrative directives in place concerning the safety of the facilities and the use of the computer network (the “Policy”). Refer to Appendix B in Exhibit 2 for a copy of the Policy.

4. The Member contravened the Policy by installing Skype, a software program that was not permitted on his school computer without written permission, which had not been granted.

5. The Member contravened the Policy by using his Board e-mail account to engage in personal, intimate communication with a person outside the School.

6. In 2012, the Member engaged in a personal, intimate conversation with a person outside the School using Skype. The conversation was recorded by a third party without the Member’s consent. A link to the recording or a portion of the recording was sent by the third party to Board employees.

7. The Member reported the situation to the Board and the Board conducted an investigation. While the investigation was underway, the Member:

(a) contacted some Board staff members concerning his situation. If the Board staff members were to testify, they would state that instructions had been issued against communicating with anyone at the Board. If the Member were to testify, he would state that no instructions had been issued at that point;

(b) deleted or transferred personal e-mails from his school account while the Board’s investigation was underway.

8. The parties acknowledge that the Member’s actions affected the Board’s investigation and the school community.

PLEA OF NO CONTEST

9. The Member admits, for the purposes of this proceeding only, the truth of the facts and evidence referred to in paragraphs 1 to 8 above (the “agreed facts”).

10. The Member acknowledges that the aforementioned agreed facts constitute professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of sections 1(5), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

11. The Member states that:

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

(b) he understands that by signing this document, he consents to the production of the evidence as set out in the Agreed Statement of Facts before the Discipline Committee;

(c) he understands that by entering a Plea of No Contest to the allegations, he is waiving his right to require the College to prove the case against him, and his right to have a hearing on this matter;

(d) he understands that any agreement between the College and the Member with respect to penalty is not binding on the Discipline Committee; and

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

12. In view of the aforementioned agreed facts and the Plea of No Contest, the College and the Member submit that the Discipline Committee ought to find that the Member’s actions constitute professional misconduct.

DECISION

In the matter of Joseph Robert Marc Lavigne and based on the Agreed Statement of Facts and Plea of No Contest and the submissions by counsel, the Committee finds that the evidence supports a finding of professional misconduct and finds Joseph Robert Marc Lavigne guilty of professional misconduct, being more particularly breaches of sections 1(5), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97, as set out in the Notice of Hearing.

REASONS FOR DECISION

The Member has admitted the truth of the facts as set out in paragraphs 1 to 8 of the agreement and has pleaded guilty to the allegations of professional misconduct against him. The Committee accepts the Member’s Plea of No Contest and finds that the facts as set out in the Agreed Statement of Facts constitute professional misconduct as submitted by the parties. In the opinion of the Committee, the incidents which took place are inappropriate.

Members of the Ontario College of Teachers are required to uphold the standards of the teaching profession and to behave in a manner befitting the status of member.

At the time of the incidents, the Member was a school principal. As such, he had a particular responsibility to set an example for his peers and his community, to obey the law and to observe his Board’s policies and procedures. His actions and decisions had an impact on the school environment.

The Member’s conduct violated the ethics and professional integrity expected of all teachers, as set out in the Education Act and the Standards of the Teaching Profession. By installing the Skype software program on his computer at school without the Board’s written permission, the Member contravened the guideline relating to the safety of the facilities and the use of the Board’s computer network. By sending personal, intimate e-mails and communications using the Board’s e-mail account, the Member failed to comply with this guideline.

The Member committed acts which would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. As an administrator and a teacher, he holds a position of trust and authority. During the Board’s investigation, the Member admits to transferring or deleting e-mails from his school account and his actions affected the Board’s investigation and the school community.

By engaging in a personal, intimate conversation with a person outside the School using Skype, his actions were rash and, as such, could damage public trust in the teaching profession. The Committee took into consideration, however, that there is no evidence that the Skype exchange took place during the Member’s hours of work or using Board-supplied equipment.

Through these acts, the Member failed to uphold the standards of the teaching profession, contravened the Education Act and committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. In addition, he engaged in conduct unbecoming a member.

JOINT SUBMISSION ON PENALTY

The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee is as follows:

1. The Discipline Committee requires the Member to appear before the Committee immediately after the hearing into this matter, to receive a reprimand delivered in person at the College’s offices at 101 Bloor Street West in Toronto, Ontario, with the fact of the reprimand to be entered on the public registry;

2. The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification:

(a) Within 120 days of the date of this order, the Member must, at his own expense, enrol in and successfully complete a course, approved in advance by the Registrar, on the ethics and responsibilities of administrators, subject to the following conditions:

(i) within 30 days of the date of the Discipline Committee’s Decision and Reasons for Decision, the Member must submit to a Registrar-approved course provider a copy of the Agreed Statement of Facts and Plea of No Contest and the Joint Submission on Penalty produced in evidence at the hearing into this matter, in addition to the Discipline Committee’s Decision and Reasons for Decision;

(ii) after a review of the documents referred to in paragraph (i), above, the course provider must submit to the Registrar, for approval, a program for the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The program proposed by the course provider must also specify the length of said course, and its objectives;

(b) within 30 days of completion of the course described in paragraph (a), above, the Member must provide the Registrar with proof in writing from the course provider stating that:

(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the stated objectives of said course; and

3. The Committee directs that a summary of its decision and order be published in the College’s official publication, Professionally Speaking/Pour parler profession. The parties have failed to reach agreement on the matter of the publication of the Member’s name. Submissions on this issue will therefore be made to the Discipline Committee. It is understood that the College will ask the Discipline Committee to direct the publication of the Member’s name.

COLLEGE’S SUBMISSION ON PUBLICATION

Counsel for the College urged the Committee to publish the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession. She argued that the publication of his name would express disapproval of his actions and would act as a deterrent for the Member and for the teaching profession.

Counsel ended her submission by stating that the publication of the Member’s name would ensure transparency and serve and protect the public interest.

MEMBER’S SUBMISSION ON PUBLICATION

Member’s Counsel asked that the Member’s name not be published in Professionally Speaking/ Pour parler profession. She reminded the Committee that it had discretion not to publish the Member’s name and argued that the reprimand and the course the Member had to take were sufficient to fulfil the College’s mandate. She added that the fact that the hearing was open to the public, that a summary of the incidents would be published in Professionally Speaking/Pour parler profession and that a notation as well as the Committee’s decision would be posted on the College’s public registry already satisfied the need to ensure transparency and serve and protect the public interest.

PENALTY AND ORDER

The Committee accepted the Joint Submission on Penalty and made the following order:

1. The Discipline Committee requires the Member to appear before the Committee immediately after the hearing into this matter, to receive a reprimand delivered in person at the College’s offices at 101 Bloor Street West in Toronto, Ontario, with the fact of the reprimand to be entered on the public registry;

2. The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification:

(a) Within 120 days of the date of this order, the Member must, at his own expense, enrol in and successfully complete a course, approved in advance by the Registrar, on the ethics and responsibilities of administrators, subject to the following conditions:

(i) within 30 days of the date of the Discipline Committee’s Decision and Reasons for Decision, the Member must submit to a Registrar-approved course provider a copy of the Agreed Statement of Facts and Plea of No Contest and the Joint Submission on Penalty produced in evidence at the hearing into this matter, in addition to the Discipline Committee’s Decision and Reasons for Decision;

(ii) after a review of the documents referred to in paragraph (i), above, the course provider must submit to the Registrar, for approval, a program for the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The program proposed by the course provider must also specify the length of said course, and its objectives;

(b) within 30 days of completion of the course described in paragraph (a), above, the Member must provide the Registrar with proof in writing from the course provider stating that:

(i) the Member has successfully completed the course, and describing the Member’s progress with respect to the stated objectives of said course; and

3. The Committee directs that a summary of its decision and order be published in the College’s official publication, Professionally Speaking/Pour parler profession, including the Member’s name as it appears on the College’s public registry.

REASONS FOR PENALTY DECISION

The Committee carefully weighed the arguments put forward by the parties. The fact that the parties have reached an agreement indicates that an appropriate balance of interests has been achieved.

The Committee found that the Member and the College had reached agreement on the chief elements of the penalty, that is, a reprimand and a course. The parties further agreed on the publication of a summary of the decision and order of the Committee in the College’s official publication.

In view of the Member’s actions and the fact that the proposed penalty addresses the expectations of the teaching profession with respect to discipline, the Committee upholds the Joint Submission on Penalty.

The reprimand by his peers delivered on behalf of the teaching profession acts as a deterrent on the Member. The fact that he has been reprimanded will appear on the Member’s Certificate of Qualification and Registration for three years, thereby acting as a deterrent on the teaching profession in general.

The course on the ethics and responsibilities of administrators which the Member must take addresses his conduct and should assist him in deepening his understanding of the seriousness of his actions.

The publication of a summary of the decision and order of the Committee in the College’s official publication, Professionally Speaking/Pour parler profession, including the Member’s name, serves and protects the public interest, ensures the transparency of the College’s disciplinary proceedings and conveys to the public and the members of the teaching profession that the College acts decisively and consistently when such conduct is brought to its attention.

The Committee therefore finds that the penalty is appropriate in the circumstances and that it serves and protects the public interest.

June 12, 2015

Monique Lapalme Arseneault Chair, Discipline Panel

Darlene Mead, OCT Member, Discipline Panel

Louis Sloan, OCT Member, Discipline Panel