Ontario College of Teachers v Palmateer, 2015 ONOCT 64

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Palmateer, 2015 ONOCT 64

Date: 2015-10-23

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

Robert Charles Palmateer, a member of the Ontario College of Teachers.

PANEL: Thomas (Tom) Potter, Chair

Sara Nouini, OCT

Pauline Smart

BETWEEN: ) Shane D’Souza,

) McCarthy Tétrault LLP,

) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

-and- )

ROBERT CHARLES PALMATEER ) Robert Charles Palmateer was not present

(CERTIFICATE # 240295) ) and did not have legal representation

) Julie Maciura,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: October 15, 2015

DECISION, REASONS FOR DECISION AND ORDERS

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

A Notice of Hearing (Exhibit 1) dated September 20, 2011 was served on Robert Charles Palmateer (the “Member”), requesting his presence on October 11, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 15, 2015.

The Member was not in attendance for the hearing and he did not have legal representation.

Counsel for the College submitted a first Affidavit of Daniela De Bartolo (Exhibit 2), sworn October 9, 2015, which outlines the College’s communications with the Member and the various attempts made by the College to serve the Member with the Notice of Hearing, the Disclosure Brief and any other relevant information or documentation relating to this matter. In light of this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure material, and was made aware of the time and the date of the hearing. The Committee therefore heard the matter in the absence of the Member.

College Counsel submitted a second Affidavit of Daniela De Bartolo (Exhibit 13), sworn October 9, 2015, which outlines the College’s efforts to contact the parents of the students involved in this matter, whose children might have served as witnesses in this matter. After several attempts to contact the parents of the students involved, College Counsel was only able to reach the parents of Student B who refused to allow their son to appear as a witness, given their concerns of the passage of time and its effect on his memory, and their concerns that testifying might have a negative effect on his emotional wellbeing. This affidavit was provided to explain why the College was unable to call more direct evidence than it did in this matter.

OVERVIEW

The two allegations in this matter arose as a result of the Member’s conduct during the 2009-2010 academic year. The Member, a grade [XXX] teacher at the time, is first alleged to have posted photographs of two of his male, grade [XXX] students on his personal [XXX] without parental permission (the “[XXX] Allegation”). Second, the Member is alleged to have inappropriately provided at least two of his grade [XXX] students with gifts, including a hat or a gemstone or both (the “Gifts Allegation”). The Member retired from the Board on June 30, 2010. His Certificate of Qualification and Registration is currently suspended for non-payment of fees.

The Committee’s task is to determine whether the facts alleged by the College have been proven, on a balance of probabilities, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee finds the Member guilty of professional misconduct.

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 and/or is incompetent as defined in subsections 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 abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

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

(d) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Robert Charles Palmateer is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Thames Valley District School Board (the “Board”) as a contract teacher at [XXX] School (the “School”) in London, Ontario.

3. During the 2009-2010 academic year, Student A and Student B were male Grade [XXX] students of the Member.

4. During the 2009-2010 academic year, the Member acted in an inappropriate manner in that he:

(a) posted photographs of Student A and Student B on his [XXX], a social networking website, without parental permission;

(b) provided Student A and Student B with gifts, such as a hat and/or a gemstone.

5. The Member retired from the Board on or about June 30, 2010.

MEMBER’S PLEA

As the Member was not present and did not have legal representation, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.

EVIDENCE OF THE COLLEGE

The College called two witnesses: Ms. Francine Marie Rheault (“Principal Rheault”) and Ms. Lynne Griffith-Jones (“Superintendent Griffith-Jones”). Principal Rheault retired in June 2015, but prior to that had an extensive career in education. She taught for 21 years, was a vice-principal for three years and a principal for two years at different schools within the Board, and at the time of the events in question, she was in her fifth year as principal at the School. Superintendent Griffith-Jones also had an extensive career in education. She was a teacher for five years, she worked as a learning coordinator overseeing the writing of curriculum for a number of years, and she served as a vice-principal from 1994 to 1998, a principal from 1998 until January 2008, and has been working as the superintendent of Human Resources with the Board from January 2008 until the time of this hearing. Both witnesses testified briefly about their knowledge of the Member’s alleged conduct.

Principal Rheault gave evidence with respect to the information that she received about the Member’s alleged conduct. She had received complaints from parents about the Member both orally and in writing. She further testified about how she escalated these concerns to the Board, and more specifically to Superintendent Griffith-Jones. She noted that neither the School nor the Board disciplined the Member, as he had already resigned from the Board when these allegations were being investigated. In addition to her oral testimony, Principal Rheault provided the Committee with copies of her written notes from her discussions with parents (see Exhibits 6, 7, 8 and 10), a copy of a written complaint from the parents of Student B (see Exhibit 9), and a copy of an email that she received from a parent, attaching the photographs of the students that the Member had posted on his [XXX] (see Exhibit 11).

Superintendent Griffith-Jones gave evidence with respect to the information that she received about the Member’s alleged conduct. She testified about the action that she took after having received this information, about her unsuccessful attempts to interview the Member (requests were made through his union representative but the Member declined to be interviewed by the Board), about the Board’s response to these allegations, and about the fact that the Board did not impose any discipline on the Member because he had resigned in June 2010.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the facts of this case were relatively simple. There are two allegations made against the Member: first, that he posted photographs of Student A and Student B on his [XXX] without parental permission; and second, that he provided Student A and Student B with gifts, such as a hat or a gemstone or both.

With respect to the [XXX] Allegation, College Counsel submitted that the Committee was provided with direct evidence that proves this allegation. First, Exhibit 11 contains an email and attached photographs that were taken from the Member’s [XXX]. Second, Principal Rheault confirmed that she visited the Member’s [XXX] online and personally saw the photographs of Student A and Student B.

According to College Counsel, the Member’s conduct in relation to the [XXX] Allegation was a breach of privacy, which was aggravated in two respects. First, the students involved were in grade [XXX], and given their young age, they could not have consented to their photographs being posted on the Member’s [XXX]. Second, the students whose photographs were posted on the Member’s [XXX] were the same two students to whom the Member had previously given hand-picked gifts. The Member knew, or ought to have known, that he should have had nothing to do with these students.

With respect to the Gifts Allegation, College Counsel first submitted that this was not an isolated incident. The Member gave gifts to students over the course of several months from March until May 2010. Second, the Member was told not to give gifts to students by at least one student’s parents (Student B). Despite having agreed to no longer give gifts to Student B, the Member continued to give gifts to Student B and others. Third, College Counsel submitted that there is an important difference between gifts and rewards. Teachers sometimes give rewards to acknowledge academic achievement, but the gifts that the Member gave were neither given for any academic reason nor for any good reason at all. Fourth, the gifts that the Member gave students were not merely tokens like candies or chocolates (although they may have included these), but they were items of value that included a domino set, a military hat, and a gemstone.

College Counsel added that the Committee ought to consider that, along with a gift, the Member also gave his personal email address to Student B, who was [XXX] years old at the time. According to College Counsel, this context is important because, not only was it inappropriate to provide his personal email address to a young boy, but he gave his email address to the student in May 2010 around the same time that he was administratively suspended by the Board and assigned to home duties, with pay. College Counsel submitted that providing his personal information, in conjunction with the gifts given, demonstrates that the Member attempted to cling onto the inappropriate and unprofessional connection that he had made with Student B.

College Counsel acknowledged that some of the evidence in relation to the Gifts Allegation was hearsay, but noted that the Committee should accept this evidence because it was reliable and it was supported by Principal Rheault’s contemporaneous notes, the written complaint from the parents of Student B, as well as the principal’s recollection of the events.

Ultimately, College Counsel submitted that the Committee was presented with sufficient evidence to find the Member guilty of professional misconduct, as alleged in the Notice of Hearing.

DECISION

Onus and Standard of Proof

The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, 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, 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(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Committee has carefully reviewed the submission of College Counsel and all of the evidence presented. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. For the sake of clarity and to provide an organizational structure to these reasons, the Committee addresses the allegations of professional misconduct by considering both of the allegations contained in the Notice of Hearing in turn. The Committee assesses the evidence relevant to each allegation and makes factual findings with regard to each of these. The Committee then determines whether or not these factual findings give rise to a finding of professional misconduct.

The [XXX] Allegation

The Committee heard evidence from both Principal Rheault and Superintendent Griffith-Jones with respect to this allegation.

Principal Rheault’s evidence regarding the [XXX] Allegation

Principal Rheault testified that she became aware of the [XXX] Allegation at the beginning of the 2010-2011 academic year, once the Member was no longer employed by the Board. The photographs were brought to her attention by a parent via email and a screenshot of the posted photographs was attached to the email (see Exhibit 11). The principal subsequently visited the Member’s [XXX] and confirmed that those photographs had been posted there. Principal Rheault testified that she was able to identify Student A and Student B in the photographs.

After having received this information, Principal Rheault forwarded the photographs to Superintendent Griffith-Jones. The principal never spoke to the Member about this incident because he was not working at the School at the time that the information was brought to her attention. Principal Rheault did not believe that the Member received any discipline from the Board as a result of this incident (again, because he was no longer employed by the Board by the time that the investigation was complete).

Superintendent Griffith-Jones’ evidence regarding the [XXX] Allegation

Superintendent Griffith-Jones testified that she was made aware of the [XXX] Allegation in October 2010, once the Member was no longer an employee of the Board. She received information relating to this allegation from Principal Rheault, who had learned about this incident from parents who had seen the photographs on [XXX]. Superintendent Griffith-Jones confirmed that the photographs were posted of students who were in the Member’s class in 2009-2010, and that these were the same students to whom the Member had given gifts.

The superintendent did not contact the Member to discuss this incident because he was no longer an employee of the Board when she learned about the [XXX] Allegation. She did, however, report the incident to the Ontario College of Teachers. Superintendent Griffith-Jones confirmed that the Member was not disciplined by the Board for posting the photographs on [XXX] because he was no longer a Board employee.

Conclusions with respect to the [XXX] Allegation

The Committee finds that the College has presented sufficient evidence to prove the [XXX] Allegation on a balance of probabilities. Exhibit 11 demonstrates that the students’ photographs were posted on the Member’s [XXX], and Principal Rheault confirmed that she personally viewed the Member’s [XXX] and saw that these photographs had been posted. Superintendent Griffith-Jones corroborated the principal’s testimony.

The Committee further finds that posting students’ photographs on [XXX] without permission gives rise to a finding of professional misconduct. The Member did not respect appropriate professional boundaries by posting photographs of his students on [XXX]. He also singled out certain students, which was both inappropriate and potentially embarrassing for those students. Posting students’ photographs on social media without permission is a violation of the students’ privacy. The [XXX] year old boys whose photographs were posted could not have consented to their photographs being posted on the Member’s [XXX].

Accordingly, the Committee finds that the Member’s conduct in this regard gives rise to a finding of professional misconduct. In particular, the Member has breached subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

The Gifts Allegation

The Committee heard evidence from both Principal Rheault and Superintendent Griffith-Jones with respect to this allegation.

Principal Rheault’s evidence regarding the Gifts Allegation

Principal Rheault testified that the Gifts Allegation came to her attention in February 2010, when she received a phone call from the concerned mother of Student B. Student B’s mother told the principal that the Member had given her son an Olympic pin and a note wishing him a “wonderful weekend”. Principal Rheault passed these concerns along to Superintendent Griffith-Jones through several emails (see Exhibit 5) and was told to keep notes on this situation but that the Board (rather than Principal Rheault) would deal with this issue. In her email to the superintendent, Principal Rheault drew a distinction between rewards and gifts (describing the items given by the Member as “gifts”); rewards were given by teachers to recognize student accomplishments, whereas gifts were given for no particular reason. The principal did not speak to the Member about this incident.

Principal Rheault testified that similar concerns resurfaced in May 2010 when the parents of Student B once again contacted the principal to inform her that the Member had given student B more gifts and a note. During his last week teaching at the School before he was assigned to home, the Member gave Student B candies, a domino set, a black velvet bag containing a gemstone, and a note in which the Member provided the young student with his personal email address – a “Hotmail” address and not his Board-issued email address (see Exhibit 6). Among other things, Student B’s parents were concerned that the Member had provided his personal email address to the [XXX] year old student, while also having given him several gifts.

Principal Rheault received another phone call from Student B’s parents on May 7, 2010, in which Student B’s father indicated that they were very concerned with the Member’s conduct (see Exhibit 7). Among other things, the parents wanted to know whether the Member had been giving gifts to other students, and whether they should contact the authorities since the Member had their phone number and home address and had previously left a strange “accidental” message on their telephone answering machine. The principal acknowledged that it was unusual and inappropriate for the Member to have provided his email address to the student, but she told the parents that she did not believe that Student B was in danger. The parents told Principal Rheault that they had previously met with the Member to tell him to stop giving gifts to their son and to stop keeping him inside during recess.

The principal met with Student B’s parents on May 10, 2010, following their anxious phone call (see Exhibit 8). The parents shared a number of concerns with the principal, which notably included their concerns for their son’s safety. The principal told the parents that Student B was not in danger, to the best of her knowledge. Student B’s parents also provided the principal with a written letter addressing their concerns that the Member had provided gifts, personal notes, and his personal email address to their son (see Exhibit 9). The principal forwarded this letter to Superintendent Griffith-Jones. Principal Rheault testified that she did not interview the Member about any of these allegations because Superintendent Griffith-Jones had advised her that the Board would handle the situation.

On May 10, 2010 Principal Rheault sent a letter to all parents informing them that the Member would not be returning to the School as their children’s teacher. She also spoke to the students about this and discovered that several students, in addition to Student A and Student B, had received gifts from the Member (see Exhibit 8).

On June 1, 2010, the principal was contacted by Student A’s mother, who informed her that the Member had given a military hat to her son, among other gifts (see Exhibit 10). Principal Rheault passed this information along to Superintendent Griffith-Jones. The principal did not speak to the Member about this allegation because he was no longer at the School at the time that she learned this information.

Superintendent Griffith-Jones’ evidence regarding the Gifts Allegation

Superintendent Griffith-Jones testified that she first became aware of the Gifts Allegation in March 2010 when Principal Rheault notified her that some parents had complained that the Member had given gifts to their children. The superintendent asked the principal to provide all information relating to this issue, and Superintendent Griffith-Jones learned that Student B’s parents had followed up with the Member and told him not to provide any more gifts to Student B. The Member had agreed to respect the parents’ wishes, according to the superintendent.

The superintendent testified that she requested that the Member speak to her about this issue through his union representative, but the Member refused and did not provide any explanation.

According to Superintendent Griffith-Jones, the Gifts Allegation resurfaced in May 2010. At that time, Principal Rheault informed the superintendent that the Member had provided gifts to a number of students including Student B. The superintendent noted that the Member had clearly not complied with the parents’ instructions to no longer give gifts to Student B.

The superintendent again tried to contact the Member through his union representative in May 2010. Once again, the Member refused to answer any of the Board’s questions and was uncooperative. As a result, the Member was suspended with pay and assigned to home in May 2010, while the Board continued its investigation. Superintendent Griffith-Jones testified that the Member retired from the Board on June 30, 2010 and never returned to a teaching position with the Board. She noted that the Member was never disciplined for his conduct because he had retired from the Board prior to the conclusion of the investigation. Superintendent Griffith-Jones also clarified that the Member’s suspension with pay was not considered disciplinary action; it was standard procedure during Board investigations.

Conclusions with respect to the Gifts Allegation

The Committee finds that the College has provided sufficient evidence to prove the Gifts Allegation on a balance of probabilities. The Committee recognizes that some of the evidence related to the Gifts Allegation was hearsay; however, the Committee notes that hearsay evidence is admissible in College discipline proceedings, and finds that the hearsay evidence presented in this case was reliable and well-supported. Principal Rheault provided the Committee with copies of her contemporaneous written notes from her discussions with parents (see Exhibits 6, 7, 8 and 10) and a copy of the written complaint from the parents of Student B (see Exhibit 9). She also gave direct evidence with respect to her recollection of the events in question, and this evidence was consistent with that of Superintendent Griffith-Jones.

As described above, the Committee received extensive evidence with respect to the Gifts Allegation. Student B’s parents complained to School administration on several occasions that the Member had provided gifts, personal notes, and his personal email address to their son. Despite having been asked to stop giving gifts to student B (and having agreed to stop giving such gifts), the Gifts Allegation resurfaced in May 2010. Not only did the Member not comply with the parents’ request, but he also gave gifts to a number of other students. The Committee heard evidence that the Member gave a military hat to Student A, and Principal Rheault testified that she discovered that the Member had given gifts to several of the students in the Member’s class, when she went to tell the class that the Member would not be returning as their teacher.

The Committee recognizes that the Notice of Hearing does not allege that the Member provided his personal email address to a student, and accordingly, it does not make a specific finding in this regard. Nevertheless, the Committee finds that this information, in conjunction with the Member’s other related conduct, provides important context with respect to the Member’s misconduct during the 2009-2010 academic year.

Giving gifts, in and of itself, is inappropriate as it crosses professional boundaries for a teacher to provide students with gifts for no apparent purpose. The Committee notes the distinction between rewarding students for their accomplishments and giving a gift for no reason and finds that the Member gave gifts rather than rewards. The concerns surrounding the giving of gifts are exacerbated when considered in the context of a member who appears to have fostered inappropriate relationships with young students, including by writing personal notes to students and sharing his personal email address with a student. The Committee is troubled that the Member provided his personal email address to Student B during the Member’s final week as a teacher, which raises questions about the Member’s intentions towards Student B moving forward. The Committee notes that Student B’s parents raised concerns about their son’s safety with School administration, and given the circumstances of this case, that concern was not unfounded.

Accordingly, the Committee finds that the Member’s conduct in relation to the Gifts Allegation gives rise to a finding of professional misconduct. By giving gifts to some students for no apparent reason, the Member singled students out and could have embarrassed these students. He also demonstrated preferential treatment towards some students, and may have given them unwanted attention. The Committee also notes that Exhibit 8 demonstrates that the other students in the Member’s class, who did not receive gifts from him, were upset by the fact that they had not received gifts when others had. Given the age of the students (grade [XXX]), it is not unreasonable to anticipate that the feelings of such young students would be hurt in the circumstances. Teachers may reward students for academic achievement, but providing gifts for no reason crosses professional boundaries. As noted above, by providing personal notes to students and his personal email address to Student B, the Member acted inappropriately and unprofessionally.

The Member was expressly asked to stop giving gifts to Student B, but he failed to comply with the parents’ request. His conduct led parents to fear for their children’s safety. The Member did not foster a safe learning environment, as is expected of members of the teaching profession. At best, his conduct crossed professional boundaries; at worst, it could reasonably have been interpreted as grooming vulnerable young children.

Consequently, the Committee finds that the Member’s conduct in relation to the Gifts Allegation gives rise to a finding of professional misconduct. In particular, the Member has breached subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the Committee ought to order the following penalties:

1. a reprimand;

2. a four-month suspension;

3. terms, conditions or limitations which generally include the condition that the Member successfully complete a course on maintaining appropriate boundaries before returning to a teaching position; and

4. publication of the finding and order of the Committee, in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

College Counsel submitted that the reprimand should be delivered in person so that the Committee can directly convey to the Member that the conduct at issue was unacceptable.

College Counsel submitted that a four-month suspension is appropriate in this case for two reasons. First, the Member was not disciplined by the Board; therefore, he has not yet faced any direct consequences for his conduct. Second, and more importantly, the Member has a prior discipline history with the College. On April 13, 2010, the Member was found guilty of professional misconduct (see Ontario College of Teachers v. Palmateer, 2010 LNONCTD 12). The allegations in the Member’s prior discipline proceeding date back to 2007 and 2008 and involve similar boundaries issues with male students in grade 6 at a different school within the same Board.

College Counsel submitted that it was clear that the Member did not learn his lesson following his first discipline proceeding, and that a more severe penalty would be appropriate in this case. According to College Counsel, it is remarkable that the Member was giving gifts to students and crossing professional boundaries from March to May 2010 (as the Committee found in this matter), which timing coincided perfectly with his April 2010 discipline hearing for similar conduct. As a result, College Counsel submitted that the Member has now demonstrated a pattern of behaviour and that he has not learned from his past mistakes.

With respect to the condition that the Member must successfully complete a course on maintaining appropriate boundaries, College Counsel submitted that this would help to rehabilitate the Member and that it was appropriate given the circumstances of this case. College Counsel responded to the concerns of the Committee that repeating a course on maintaining appropriate boundaries might not serve a useful purpose, given that the Member has already completed a boundaries course but has found himself once again before the Committee for similar conduct. According to College Counsel, it is possible that the Registrar will require the Member to complete a different course than the one that he has already completed. Moreover, the condition that the Member must complete a course will serve as an important general deterrent because it will inform other members of the profession of the consequences for engaging in conduct similar to that in which the Member engaged.

With respect to publication, College Counsel submitted that the Member’s name ought to be published in Professionally Speaking/Pour parler profession. College Counsel noted that the Member’s name was not published in 2010 following his first discipline proceeding. Because this is the second similar case involving the Member, College Counsel urged the Committee to publish the Member’s name. Publication of the Member’s name will serve as a general deterrent to the profession and it satisfies the transparency objectives of the College’s discipline process. College Counsel noted that there was no evidence that publishing the Member’s name would have a detrimental effect on the Member’s family or on his career.

After having received the College’s penalty submissions, the Committee expressed concerns with the proposed penalty. Given the seriousness of the Member’s conduct, the fact that the Member is a repeat offender, and the fact that the Member’s conduct in this matter coincided exactly with the time that the Member faced previous discipline at the College in April 2010, the Committee was concerned that the proposed penalty was too lenient; the Committee felt that a suspension of four months would bring disrepute to the profession and would not adequately protect the public interest. The Committee indicated that it was inclined to order revocation of the Member’s Certificate of Qualification and Registration, and offered College Counsel the opportunity to make submissions in this regard.

In response, College Counsel submitted that the Committee’s concerns were legitimate. College Counsel noted that the Member had not been specifically informed that revocation was being sought and that he might not have been expecting this outcome. Nevertheless, College Counsel noted that the Member chose not to attend this discipline hearing and he chose not to provide his position, despite having received ample notice. College Counsel did not oppose the Committee’s inclination to order revocation and submitted that the Committee is best positioned to determine what penalty would appropriately serve the public interest.

The Committee further expressed concerns that the College did not present any jurisprudence to demonstrate that the proposed penalty was within the appropriate range or that revocation would be outside of the appropriate range.

In response, College Counsel submitted that it was unable to find analogous cases in which longer suspensions or revocation was ordered. College Counsel noted that there is a range of reasonable penalty orders and that the Committee might take the view that revocation is more appropriate than a four-month suspension, given the circumstances of this case. College Counsel, however, did not provide any case law to assist the Committee with this determination.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member, which certificate the Member is to immediately surrender to the Registrar.

2. There shall be publication of the finding and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee carefully considered the penalty submissions of College Counsel in arriving at its decision. The Committee does not accept part of the proposed penalty presented by the College and finds that revocation of the Member’s Certificate of Qualification and Registration, and publication with name, is the appropriate penalty in this case.

The Committee has the authority to revoke the Member’s Certificate of Qualification and Registration pursuant to subsection 30(4)(1) of the Act, which provides: “Where the Discipline Committee finds a member guilty of professional misconduct or to be incompetent, it may make an order […] Directing the Registrar to revoke any certificate held by the member under this Act.” While the Member has retired from the Board, he still holds a Certificate of Qualification and Registration with the College (and so would be entitled to teach again by simply paying his outstanding fees). As such, the principle of specific deterrence is still relevant in this case. Revocation also serves as an important general deterrent as it informs other members of the profession that the type of conduct in which the Member has repeatedly engaged will attract the most serious penalty. The order also protects the public interest as it ensures that the Member will not return to the teaching profession without first successfully applying for reinstatement.

While the Committee recognizes that the College proposed a four-month suspension instead of revocation because it was unable to find case law to support revocation, the Committee finds that revocation is the appropriate penalty in the circumstances of this case. First, while case law can be persuasive and the Committee recognizes that like cases should be treated alike, the Committee is not bound by past decisions of the Discipline Committee.

Second, the fact that the Committee was not presented with analogous cases where members had their Certificates of Qualification and Registration revoked does not mean that revocation is inappropriate in the Member’s case; it simply means that the Committee received limited jurisprudential guidance on this issue. The Committee was presented with no jurisprudence, one way or the other, to suggest that revocation was either appropriate or inappropriate. Similarly, the Committee received no jurisprudence to indicate that a four-month suspension was within the appropriate range for the type of repeated conduct in which the Member engaged.

Accordingly, with no case law to guide its decision with respect to penalty, the Committee turned to first principles when determining whether the Member’s conduct warranted the most severe penalty available. Subsection 3(2) of the Act provides that, “In carrying out its objects, the College has a duty to serve and protect the public interest.” Protection of the public interest is of the utmost importance in this case and the Committee believes that it can only be achieved through revocation.

The following factors contributed to the Committee’s decision to revoke the Member’s Certificate of Qualification and Registration. First, his conduct was very serious. At best, he repeatedly crossed professional boundaries; at worst, he was grooming vulnerable, young boys. Second, the Member is a repeat offender; he was found guilty of professional misconduct in April 2010 for engaging in similar conduct. Third, the Member’s conduct in this case coincided exactly with the time that the Member was previously before the Discipline Committee during his prior discipline hearing. In April 2010, the Discipline Committee clearly told the Member that his conduct was unacceptable and unprofessional; and yet, in April 2010, the Member was engaging in the conduct that gave rise to these proceedings. He did not learn from his mistakes. Fourth, the Member was uncooperative. On more than one occasion, he refused to meet with Superintendent Griffith-Jones and to cooperate with the Board’s investigation into his alleged misconduct. The Committee has seen no evidence that the Member has taken responsibility for his actions or demonstrated any awareness that his conduct was unacceptable. In fact, the Member did not even attend the discipline hearing, which demonstrates a disregard for the authority of the College. As a result, he now faces serious consequences.

Through his repeated conduct, the Member has forfeited the privilege of holding a teaching Certificate in Ontario. He has repeatedly disregarded his professional obligations, in what has become a disturbing pattern of behaviour. He has also breached his position of trust and authority as a teacher. In order to ensure the protection of the public interest, the Committee finds that revocation is necessary, given the circumstances of this case.

Finally, the Committee finds 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 repeated misconduct and the consequences of such behaviour. It also holds the Member accountable for his actions. Publishing the Member’s name serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, 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 23, 2015

______________________________ Thomas (Tom) Potter

Chair, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel