Ontario College of Teachers v Sabol, 2015 ONOCT 70

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Sabol, 2015 ONOCT 70

Date: 2015-04-16

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

Paul Christopher Sabol, OCT, a member of the Ontario College of Teachers.

PANEL: Irene Dembek, OCT, Chair

Stefanie Achkewich, OCT

Jean-Luc Bernard, OCT

BETWEEN: ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

– and – )

PAUL CHRISTOPHER SABOL ) Vanora Simpson,

(CERTIFICATE #400955) ) Sack Goldblatt Mitchell LLP, ) for Paul Christopher Sabol

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: April 9, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 9, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated May 5, 2014 was served on Paul Christopher Sabol (the “Member”), requesting his presence on May 27, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for April 9, 2015.

The Member was in attendance for the hearing.

THE ALLEGATIONS

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

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

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

(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

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

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

(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); and

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

At the hearing on April 9, 2015, Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b), (c) and (d) of the Notice of Hearing be withdrawn. The Committee was in agreement and these allegations were subsequently withdrawn. The Committee was also not asked to make a finding of sexual abuse as set out in section 40 (1.1) of the Act.

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, Paul Christopher Sabol was a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2007-2008 academic year, the Member taught a Grade [XXX] [XXX] class. The Member played the movie “The Girl with the Pearl Earring” for his class. The movie is about painter Jan (Johannes) Vermeer’s career and work in 17^th century Holland and his famous painting, which gives the movie its title.

4. The movie is rated by the Motion Picture Association of America (MPAA) as “PG-13”, meaning “Parents Strongly Cautioned -- some material may be inappropriate for children under 13”. The Ontario Film Review Board rated the movie “PG”: “Parental guidance is advised. Themes or content may not be suitable for all children.” The movie contains sexually suggestive content, including the artist’s paintings of his young peasant maid as well as an attempted sexual assault scene. Some of the students in the Member’s Grade [XXX] [XXX] class were [XXX] years old at the time and were disturbed by the movie. The Member acknowledges that despite his belief that there was a pedagogical purpose to showing this film to his class, it was an unwise choice.

5. In September 2008, the Member presented a variety of [XXX] reproduction postcards to students in his Grade [XXX] [XXX] class in relation to an [XXX] activity. The students were [XXX] years old at the time. Some of the many postcards depicted nude figures, both male and female, in paintings, sketches, or sculptures. Some of the nude images were sensual, others were provocative and explicit. Other postcards depicted landscapes, still lifes, portraits, architecture, or design elements. The Member displayed 584 postcards, of which 37 depicted nude figures.

6. The Member displayed the postcards on tables at the back of the classroom. Before he invited his students to view the postcards, the Member warned them that some of the images portrayed “mature themes”. He told them that if they did not feel comfortable with the images, they could remain seated and did not have to participate in the activity. Some of the students described the images they viewed as disturbing, and they did not understand how these images related to the lesson.

7. The Member believed there was a pedagogical purpose in using the postcards to explore how the elements and principles of design are expressed in works of [XXX]. He acknowledges that his inclusion of some of the images was inappropriate for this age group and demonstrated a lack of judgment, and that the activity could have been completed without including these images. Attached to Exhibit 2 at Tab “B” are copies of some of the postcards viewed by the students.

8. During another [XXX]-related activity, the Member distributed worksheets with various shapes and designs printed on them. One worksheet included circles, and one of the circles had small curved lines along its circumference. He asked which image attracted students’ attention. In differentiating this circle from the others, the Member described it as a “hairy ball”. If the Member testified, he would say that the students used this phrase before him and he echoed it, as he tried to express verbally what was depicted visually. He then prompted students to identify the element of design at issue by asking, “Why are you looking at the hairy ball?” (or words to that effect) and “What element of design do you see?” (or words to that effect). For this image, correct answers would have been “line”, “texture”, or “shape”. The repeated use of the phrase “hairy ball” by the Member made some of the Grade [XXX] female students in his class feel uncomfortable.

9. In early October 2008, the Member tried on a school jersey that had been brought to him during one of his Grade [XXX] [XXX] classes. He asked the student who brought the jersey to him how he looked in it, and she replied, “awesome”. Some of his students reported that the Member turned to them and asked if they agreed he looked awesome, and said words to the effect of, “why don’t you tell your moms? If the Member were to testify, he would say he told his students, “why don’t you tell my mom” (by which he meant his wife, a nickname he uses for her).

10. The Member had fabric bolt tubes in his classroom as part of his [XXX] supplies. They were approximately four feet in length and were used by his students in various [XXX] projects. Students would mark on the tubes the length they needed for their projects, and the Member would cut them to size in the classroom, using a saber saw. He would trace along the pencil marks made by students with a pen.

11. During a Grade [XXX] [XXX] class, the Member placed one of the paper tubes between his legs. He examined the tube as he held it and engaged in the tracing exercise during the class. This made some of the female students in the class feel uncomfortable because they believed he was simulating masturbation. If the Member were to testify, he would state that while he may have handled the item while it was between his legs, he did not intent to simulate anything sexual.

12. The Member was suspended for 25 days without pay, was required to complete professional counselling and coursework, and was placed in an interim assignment at a new location for the remainder of the academic year. Attached to Exhibit 2 at Tab “C” is a copy of the Discipline Letter received by the Member, revised May 7, 2009.

GUILTY PLEA

13. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-12 above (the “Admitted Facts”).

14. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18-unprofessional) and 1(19).

15. By this document the Member states that:

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

(b) he understands that by signing this document he is consenting to the evidence as set out in the 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.

16. 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 the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18-unprofessional) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 12 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged, and the Committee finds, that the Admitted Facts constitute professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18-unprofessional) and 1(19).

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

On more than one occasion in 2007 and 2008, the Member showed inappropriate material to his Grade [XXX] [XXX] class. During one incident, the Member warned his students about the “mature theme” of numerous postcards he had on display in the classroom, in relation to an [XXX] activity, and advised them that they did not have to participate if viewing the postcards made them uncomfortable. Despite this warning, the Committee was concerned with the Member’s inappropriate choice of teaching material and his failure to recognize that his teaching material should not include sensual, provocative or explicit nude images. Although the Member believed that the inappropriate content served a pedagogical purpose, the Committee finds that the Member exercised poor judgment and did not consider the sensitivity of such young school children.

Further incidents of inappropriate behaviour by the Member occurred throughout 2008 and although the Member claims that his students may have misunderstood his words or gestures at certain times, the Committee finds that the Member lacked sound judgment and conducted himself in a manner unbecoming a member of the teaching profession. Members of this profession must have a clear understanding of what constitutes appropriate language and behaviour with their students.

As a result of his misconduct, the Member was suspended by the Board for 25 days without pay, was required to complete professional counselling and coursework and was placed an interim assignment outside of the School.

Accordingly, the Committee finds that the Member’s actions are unprofessional and constitute conduct unbecoming a member.

JOINT SUBMISSION ON PENALTY

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

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

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 25 days, with such suspension having been served from March 13, 2009 to April 27, 2009. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately

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

(a) the Member shall enrol in and successfully complete at his own expense, prior to returning to a teaching position requiring him to have a Certificate of Qualification and Registration, a course of instruction pre-approved by the Registrar regarding adolescent development and professional boundaries with students;

(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) 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 RE: PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Joint Submission on Penalty, which asks the Committee to direct that the Member receive a reprimand, complete a course on adolescent development and professional boundaries with students, and that there be publication in the official publication of the College, satisfies the principles of general and specific deterrence, openness and transparency. Counsel for the College submitted that publication with the name of the Member should also form part of the penalty as it satisfies the deterrence component of the penalty as well.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the Member’s name is not required in this case. All purposes of the penalty are still achieved without publishing the Member’s name.

Counsel for the Member submitted that the powerful effect of the Board’s penalty for the Member’s behaviour is such that he has not been teaching since 2009. Therefore, Counsel for the Member submitted that the goal of specific deterrence has already been met.

Counsel for the Member submitted that the findings and order of the Committee are easily available to the public through the internet and will be linked to the Member through the Register. Accordingly, publication with name was unnecessary.

Counsel for the Member referred the Committee to three cases in which publication without name was ordered and asked the Committee to consider the misconduct in those cases which, like in the Member’s case, did not warrant publication with name. Counsel for the Member also asked the Committee to consider the privacy interests of the Member when making an order regarding publication with name.

Reply Submissions of College Counsel

In reply, Counsel for College stated that the cases referred to by Counsel for the Member do not support an order for publication without name in the Member’s case. Specifically, in one of the cases referred to by Counsel for the Member, the order for publication without the name of the member was made to protect the identity of the victim in that case. That case is distinguishable from the Member’s case.

Counsel for the College further submitted that the Committees in the other two cases did not order a suspension as part of the penalty, which distinguishes those two case from the Member’s case. Counsel for the College also stated that the weight of the penalty should reflect the weight of the misconduct, and the misconduct of the Member in this case is more serious than the misconduct in the cases referred to by Counsel for the Member.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed 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.

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 25 days, with such suspension having been served from March 13, 2009 to April 27, 2009. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately.

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, prior to returning to a teaching position requiring him to have a Certificate of Qualification and Registration, a course of instruction pre-approved by the Registrar regarding adolescent development and professional boundaries with students;

(b) within thirty 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. There shall be publication of the findings 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 determined that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member. Therefore, the Committee accepted the proposed penalty presented by the parties.

The Committee finds that the Member did not exercise sound judgment and acted in an inappropriate and unprofessional manner when conducting himself in front of his Grade [XXX] students. As such, the reprimand of the Member by his peers in respect of his inappropriate conduct serves to emphasize the necessity to maintain the appropriate professional standards set by the College.

The Committee finds that the 25 day retroactive suspension is warranted and appropriate. The recording of the suspension on the Register serves as a specific deterrent to the Member and a general deterrent to members of the profession and the public. It informs the Member, the teaching profession and the public that this type of conduct is not sanctioned by the College and will be dealt with accordingly.

The course of instruction in adolescent development and professional boundaries will serve to clarify for the Member why his conduct was unprofessional. Additionally, the coursework will aid in the rehabilitation of the Member and will help him to understand the nature of his misconduct.

The Committee finds that publication with name is necessary as it serves as a specific deterrent to the Member and a general deterrent to the profession. Publication with name informs the profession and the public of the consequences to members’ misconduct and reassures the public that the profession acts decisively 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: April 16, 2015

Irene Dembek, OCT, Chair

Chair, Discipline Panel

______________________________ Stefanie Achkewich, OCT

Member, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel