Ontario College of Teachers v. McLean, 2015 ONOCT 58

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v McLean, 2015 ONOCT 58

Date: 2015-01-22

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

Hayden Ashford McLean, OCT, a member of the Ontario College of Teachers.

PANEL: Shanlee Linton, OCT, Chair

Irene Dembek, OCT Robert Gagné

BETWEEN: )

) Ava Arbuck,

ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP,

) for Ontario College of Teachers,

) assisted by Daniela De Bartolo,

) Law Clerk

-and- )

HAYDEN ASHFORD MCLEAN ) Andrea Wobick,

(CERTIFICATE #214559) ) Ursel Phillips Fellows Hopkinson LLP,

) for Hayden Ashford McLean

) Marc Spector,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel ) ) Heard: January 15, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 15, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated May 15, 2013 was served on Hayden Ashford McLean (the “Member”), requesting his attendance before the Discipline Committee on June 19, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 15, 2015.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated May 15, 2013 are as follows:

IT IS ALLEGED that Hayden Ashford McLean 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 keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(d) he falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

(e) 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);

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

(g) 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 Guilty Plea (Exhibit 2), which provides as follows:

1. At all material times, the Member 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 respecting the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an auto mechanics teacher at Northern Secondary School (the “School”).

The Donation:

3. In and around February 2010, a member of the community (the “Donor”) donated a 1999 Volvo (the “vehicle”) to the School for teaching purposes in the School’s auto mechanics shop. The Donor handed over to the Member the ownership papers, which she had not signed, as well as an independent appraisal indicating that the vehicle was worth approximately $3500. Attached to Exhibit 2 at Tab B is the appraisal provided by the Donor to the Member.

4. The Donor did not place any conditions on the donation, nor did she request a tax receipt, when she brought the vehicle to the School. The Member understood he was to deal with the vehicle in a manner consistent with the best interests of the students and the program. The Member removed the licence plates and the Donor took them with her.

5. The Donor left a 2009 licence plate renewal form, which had her signature on it, in the vehicle when she donated it. Attached to Exhibit 2 at Tab C is a copy of the licence plate renewal form.

Transfer of Ownership:

6. The Member and his Grade 12 class began to work on the vehicle. The Member discovered that the computer system within the vehicle was the problem. He believed they could fix it to make the vehicle roadworthy. The vehicle required road testing and the Member obtained a ten-day permit so he could test drive the vehicle while repairing it. However, repairs were not complete in this timeframe.

7. To drive on a public highway, the vehicle had to be insured.

8. The Member attempted to contact the Donor for the purpose of arranging a transfer of ownership, but was advised she was on an extended vacation.

9. On or about March 16, 2010, the Member transferred ownership of the vehicle into his own name. He did this by copying the Donor’s signature onto the owner portion of the ownership document. He was able to copy the Donor’s signature from the licence plate renewal form (Exhibit 2, Tab C). Attached to Exhibit 2 at Tab D is a copy of the Motor Vehicle Transfer Receipt issued by the Ontario Ministry of Revenue showing that ownership of the vehicle was transferred from the Donor to the Member on March 16, 2010. Attached to Exhibit 2 at Tab E is a printout of the record of the Ministry of Transportation also showing that the vehicle was registered in the name of the Member on March 16, 2010.

10. The Member improved the vehicle and put approximately $1000 of his own money into the parts for the repairs.

11. The Member acknowledges that he did not have permission from the Donor, the School, or the Board to transfer ownership of the vehicle into his name. He acknowledges that he did not pay the Donor, the School or the Board any consideration in exchange for the vehicle.

12. The Member paid for insurance and insured the vehicle under his name. He took the vehicle for a brakes and emissions test, and had the vehicle certified by a mechanic.

13. On March 11, 2011 the Member obtained a permit for the car. Attached to Exhibit 2 at Tab F is a copy of the document issued by the Ministry of Transportation confirming the permit was issued to the Member on that date.

14. On occasion, the Member drove the vehicle over a period of three to four months to and from work and to the supermarket on weekends. The vehicle was parked for the majority of time that the Member had it, either at the School or at his home.

Tax Receipt:

15. In the fall of 2010, the Donor requested a tax receipt for the donation of the vehicle. Pursuant to the Board’s “Gifts in Kind” procedure, the Principal forwarded the appraisal to the Board, in order to obtain a tax receipt for the Donor. Attached to Exhibit 2 at Tab G is a copy of the Board’s “Gifts in Kind” procedure.

16. Approximately nine months after the donation, the Donor’s assistant called the Member requesting a tax receipt. The Member advised the assistant he could not do so, as he had transferred the car into his name. At the time, the assistant appeared to understand the situation and accepted that no tax receipt would be issued. However, the Member was later contacted by the Principal’s assistant and advised that the Donor wanted a receipt. At this point, the Member advised the Principal’s Assistant that this was not possible as he had transferred the car into his name. He further indicated his understanding that the Donor, in recognition of the current circumstances, no longer expected to receive a tax receipt. At no time did the Member ever conceal the fact that the car had been registered to him.

17. In March 2011, the Donor’s assistant again contacted the School to request a tax receipt.

18. In response to the renewed request, the Member advised the Principal that he had transferred ownership of the vehicle into his name, and suggested to the Principal that the School send the Donor a letter acknowledging the donation of the vehicle.

19. On or about March 11, 2011, the Member handed over the keys, the vehicle, and the ownership papers for the vehicle to the Principal, and offered to transfer ownership back to the Donor or the Board.

Employer’s Response

20. At the conclusion of the Board’s investigation, the Member was suspended by the Board for 15 days and was required to review the Board’s process for vehicle donations.

GUILTY PLEA

21. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 20 above (the “Admitted Facts”).

22. The Member hereby acknowledges that the Admitted Facts above constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(10), 1(12), 1(13), 1(15), 1(18), and 1(19).

23. By this document the Member states that:

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

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

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

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

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

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

24. In light of the admitted facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Hayden Ashford McLean committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(10), 1(12), 1(13), 1(15), 1(18), and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 20 (the “Admitted Facts”) of the Agreed Statement of Facts and Guilty Plea. He acknowledged that the Admitted Facts referred to above constitute conduct which is professional misconduct and pleaded guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(10), 1(12), 1(13), 1(15), 1(18), and 1(19).

The Committee accepts the Member’s guilty plea, and accepts that the facts contained in the Agreed Statement of Facts and Guilty Plea amount to professional misconduct as pleaded to by the Member.

The Committee finds that the Member failed to conduct himself in accordance with his professional and ethical obligations when he transferred the ownership of a vehicle donated to the School’s auto mechanics shop, for teaching purposes, into his own name. In order to transfer the ownership of the vehicle into his own name, the Member copied the Donor’s signature from the license plate renewal form onto the owner portion of the ownership document. The Member acknowledged that he did not have permission from the Donor, the School or the Board to transfer ownership of the vehicle into his name. The Member further acknowledged that he did not pay the Donor, the School or the Board any consideration in exchange for the vehicle.

The Committee finds that the Member’s behaviour is disgraceful, dishonourable and unprofessional. As a teacher, the Member was expected to be a role model for his students. In this he failed. The Member betrayed an essential element of professional trust and he undermined and brought the profession into disrepute.

The Committee finds that the Member’s actions constitute professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(10), 1(12), 1(13), 1(15), 1(18), and 1(19).

JOINT SUBMISSION ON PENALTY

Counsel for the College and Counsel for the Member submitted a Joint Submission on Penalty (Exhibit 3) indicating the following:

The Ontario College of Teachers and the Member jointly submit 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 fifteen (15) days, with such suspension having been served from September 20, 2011 to October 11, 2011, and the fact of the suspension set out in this paragraph is to be recorded on the public Register;

3. direct the Registrar to impose 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) the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding ethical expectations of teachers, within six (6) months of the date of this Order;

(b) within thirty (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 provider stating that:

i. he or she has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

ii. the Member has successfully completed the course.

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

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that publication with name is warranted in this case as it addresses the four principles of sanction, being specific and general deterrence, transparency and accountability. Counsel for the College stated that the Member failed to maintain the ethical standards of the profession when he forged a signature of the Donor and transferred the ownership of a vehicle that was Board property into his own name.

College Counsel submitted that publication with name would serve as a specific and general deterrent. It signifies to the Member that his conduct was not acceptable and it demonstrates to the profession that the College does not take these matters lightly and will not shield members from public scrutiny. It was further submitted that publication with name is essential to maintain transparency and accountability to the public. In the absence of a good reason not to publish, publication should include the Member’s name.

Submissions of Member’s Counsel

Counsel for the Member submitted that the discretion to publish the Member’s name lies within the purview of the Committee. Counsel for the Member submitted that the Member’s name should not be published in the College’s publication Professionally Speaking/Pour parler profession. Member’s Counsel indicated that the penalty agreed upon, along with the notation on the Member’s certificate of terms, conditions and limitations, is sufficient to serve as a specific deterrent to the Member, and that specific and general deterrence can be satisfied without publication of the Member’s name. Member’s Counsel submitted that the Member’s misconduct was at the lighter end of the scale, that it was a single incident in a 20-year career with the same Board, that five years have elapsed since the misconduct and that there is no evidence of any further misconduct. Member’s Counsel indicated that the Member remains a teacher with the same board and that publication of his name might disrupt the career of the Member. In this case, the Member has learned his lesson and moved on.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is required to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the College (the “Register”).

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of fifteen (15) days, with such suspension having been served from September 20, 2011 to October 11, 2011. The fact of the suspension is to be recorded on the Register.

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

(a) the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding ethical expectations of teachers, within six months of the date of this Order;

(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 provider stating that:

i. the course provider has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

ii. the Member has successfully completed the course.

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

REASONS FOR PENALTY

The Committee determined that the Joint Submission on Penalty (Exhibit 3) was proportionate to the misconduct committed by the Member and appropriate in the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties.

The Committee agrees that a suspension and reprimand are appropriate measures in this matter and act as specific deterrents to the Member and general deterrents to the profession. The requirement that the Member successfully complete a course of instruction covering ethical expectations of teachers serves as a remedial measure, and will address the conduct engaged in by the Member and will ensure protection of the public.

The Committee ordered publication of the findings and orders, with the name of the Member. The Committee found the Member’s actions to be a serious breach of trust. The Member did not take into consideration the needs of the School when fraudulently transferring the vehicle into his own name and there was no evidence that the School benefitted from this transaction. The Committee determined that publication of the decision and findings, with the name of the Member, serves to inform the public that the College takes seriously its obligation to impose appropriate sanctions on members of the profession who conduct themselves in an unethical and unprofessional manner. It is expected that teachers fulfill their duties in an honest and ethical manner. There is no place in the profession for actions that undermine the integrity of the profession.

The Committee determined that publication with the name of the Member assures the transparency and accountability of the disciplinary process and reinforces the mandate of the College to serve and protect the public interest. Publication with name serves as a general deterrent by reminding the profession that such behaviour is not condoned by the College and will warrant appropriate sanctions.

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

Dated: January 22, 2015

______________________________ Shanlee Linton, OCT

Chair, Discipline Panel ______________________________ Irene Dembek, OCT Member, Discipline Panel

Robert Gagné

Member, Discipline Panel