Ontario College of Teachers v Shuber, 2015 ONOCT 72

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Shuber, 2015 ONOCT 72 Date: 2015-01-05

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

Harry Solomon Shuber, OCT, a member of the Ontario College of Teachers

PANEL: Monique Lapalme Arseneault, Chair; Alexander Bass, OCT; Wes Vickers, OCT

BETWEEN: )

) Joanne Excellent,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

• and - )

) Mark Wright,

HARRY SOLOMON SHUBER ) Sack Goldblatt Mitchell LLP, (CERTIFICATE # 441985) ) for Harry Solomon Shuber

) Erica Richler,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: November 27, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 27, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated September 9, 2013 was served on Harry Solomon Shuber (the “Member”) requesting his presence on September 26, 2013 to set a date for a hearing and specifying the allegations. The hearing was subsequently set for November 27, 2014.

The Member and his Counsel were in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated September 9, 2013 are as follows:

IT IS ALLEGED that Harry Solomon Shuber, 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) 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);

(e) 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

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

College Counsel tendered the Membership Information for Harry Solomon Shuber (Exhibit 2), which indicates that the Member has held a Certificate of Qualification and Registration since 2001 and that he was registered with the College during the period of the alleged events.

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that an agreement had been reached between the parties and introduced a Memorandum of Agreement (Exhibit 3) dated October 6, 2014 (the “MOA”) , which provides as follows:

Agreed Statement of Facts

The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed for the purpose of this Ontario College of Teachers’ proceeding only, and agree to the receipt of this document by the Discipline Committee.

1. At all material times, the Member taught at [XXX] School for 9 years and was transferred to [XXX] School for the remainder of the 2010-2011 school year (the “Schools”). The Member is currently teaching at Grade [XXX] at [XXX] School.

2. The Board reported to the College that, during the 2010-2011 school year, parents and students expressed their concerns to the School administration regarding the Member’s mistreatment of students and derogatory comments on the teaching practices of colleagues.

3. In particular, the parents and students reported that the Member:

a) used profanity such as “shit”, “bullshit”, “fuck” and “suckish” while teaching Grade [XXX];

b) said to students, “Get the fuck out because I have a better class who will actually give a shit”;

c) said to Student No. 1, “Get the fuck out. You want to get out of class so badly, then get the fuck out”;

d) told Student No. 2 to get out of class, making her leave and then come back and leave again;

e) embarrassed Student No. 3 by having him enter his classroom and sit in front of the class;

f) made derogatory comments about his colleagues to the students regarding their inability to teach;

g) called Student No. 4 names such as “stupid idiot” in front of the class;

h) told Student No. 4 that she could not wipe her own ass and will not go far in life because of her attitude;

i) said to students, “Answer the God damn question! What do you mean you do not understand?”, “There is no point to teaching”, “You guys will never learn - you should not even be in school”;

j) told students that they do not want to see him when he is “fucking” angry;

k) yelled at Student No. 5 and told her that she is “retarded” and “stupid”, and instructed the entire class to look at her;

l) instructed students in his Grade [XXX] class not to go home and tell their parents that he uses the word “fuck” during class because that is “snitching”; and

m) said to Student No. 7, “I do not give a fuck” when she raised her hand.

4. An investigation was conducted by The Jewish Family Services and Child Services (the “JFSC”) and the allegations were substantiated.

5. In a letter of discipline dated February 14, 2011, the Member was required to participate in Anger Management counseling and to provide evidence of same to the Board by June 2011. The Member was also placed in an interim assignment for the remainder of the 2010/2011 school year and was transferred to [XXX] School.

6. The Board further reported that, during the same school year, the Member:

a) said to Student No. 8, “You are mean and full of shit”;

b) instructed Student No. 9 to stand up and then sit down in front of class;

c) told Student No. 10 that he is acting like a child, and saying, “This is a stupid

garbage question that a person in Grade [XXX] would ask”; and

d) said to Student No.10, “You should have shut up when you were back there and

not get into this” and “You are a child and I am an adult. So you can’t defend

yourself”.

7. In a letter of discipline date June 22, 2011, the Member was suspended for five days without pay. The Member was also required to participate in a Classroom Management course and to provide evidence of same to the Board by September 30, 2011.

8. On December 17, 2013, Member’s counsel provided the College with written confirmation of the Member’s successful completion of the Anger Management counseling sessions and Classroom Management course referred to paragraphs 5 and 7.

Plea of No Contest

9. The Member pleads no contest to the allegations of professional misconduct as alleged in the Notice of Hearing, issued on September 9, 2013.

10. The Member voluntarily enters into a plea of no contest, and understands that by doing so, he is waiving the right to require the College to prove the case against him and the right to a contested hearing.

11. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under the protection of the Evidence Act, R.S.O 1990, Chapter 12, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, Chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal, or administrative proceeding.

Joint Submission on Resolution

The Parties agree to resolve the matter as follows:

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

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

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

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

16. the Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the plea of no contest will be accepted, the finding of guilt will be made, and the penalty will be imposed;

17. the Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the Public Register maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996. There may also be other amendments made to the Public Register to reflect this agreement between the parties, including amendments to the Member’s Status, Status History and Terms, Conditions and Limitations;

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

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

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

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

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

DECISION

Having examined the exhibits filed, and based on the Memorandum of Agreement, the Plea of No Contest, and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the Memorandum of Agreement. The Committee finds that Harry Solomon Shuber committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member agreed to the truth and accuracy of the facts contained in the MOA. The Committee accepts the MOA as well as the Member’s Plea of No Contest and finds the Member guilty of professional misconduct.

The Committee finds that the Member has failed to maintain the standards of the profession. His inappropriate remarks constituted verbal, psychological and emotional abuse. The Member has failed to comply with his duties in the Education Act, and he engaged in conduct unbecoming a member. By his actions, the Member has breached Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

The Board received concerns from parents and students regarding the Member’s conduct during the 2010-2011 school year. During that same year, the Member made inappropriate comments to students and made derogatory comments regarding the teaching practices of his colleagues.

Teachers hold positions of trust and authority. It is important for teachers to establish strong, professional relationships with their students and colleagues. It is not acceptable for a teacher to make inappropriate comments that demean and embarrass students or colleagues. Parents entrust teachers with the care of their children, and through his inappropriate interaction with students, the Member has disappointed parents, the profession and the greater public.

SUBMISSIONS ON PUBLICATION

Submissions of Counsel for the College

Counsel for the College submitted that the Member’s name should be published in the College’s official magazine, Professionally Speaking/pour parler profession.

Counsel for the College stated that publication with name is necessary as it aligns with past decisions. Counsel for the College referred the Committee to Recommendation 33 of the LeSage Report, which calls for publication with name in every instance. It was further highlighted that, should the Ministry of Education adopt the LeSage Report’s recommendations, it would remove from the Discipline Committee any power to make orders restricting publication, other than a publication ban.

Counsel for the College presented two cases that support the College’s position that the Member’s name should be published.

Counsel for the College concluded that the Member was disciplined by the Board on two occasions for his behaviour. Given the Member’s repeated conduct, publication with the Member’s name is necessary as it would serve as a specific deterrent to the Member. It would also serve as a general deterrent to the profession. It was the College’s position that publication with name is in keeping with the openness and transparency of Discipline Committee proceedings.

Submissions of Counsel for the Member

Counsel for the Member submitted that proposed legislation is not current law, and that the Committee has the discretion whether or not to publish the Member’s name in the College’s official magazine, Professionally Speaking/pour parler profession.

Counsel for the Member stated that the Committee should consider three principles when determining whether or not to publish the Member’s name. Specifically, it is important to consider transparency, general deterrence and specific deterrence.

According to Counsel for the Member, the Committee must balance the harm to the Member against the interests of openness and transparency in deciding whether to publish with or without name. Counsel for the Member submitted that, because this case had not received media coverage, it would be unnecessary to publish the Member’s name at this stage. Publication with name would be very damaging to the Member’s reputation, according to Member’s Counsel.

Counsel for the Member further submitted that publication with name is not essential to achieve the objectives of general and specific deterrence. The Member had previously received multiple disciplinary actions by the Board, which included home assignment, transfer, suspension, reprimands and he was required to complete courses covering anger and classroom management.

Reply Submissions of Counsel for the College

Counsel for the College replied by stating that, although legislation requiring publication with name has not yet been passed, it has to be made clear to other members of the profession that matters of a similar nature that result in a finding of professional misconduct will require publication with name.

RESOLUTION

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 College’s public register.

2. The findings and orders of the Committee shall be published in summary form, without the name of the Member, in the official publication of the College, Professionally Speaking/pour parler profession.

REASONS FOR RESOLUTION

The Committee carefully considered and accepted the Joint Submission on Resolution.

The Committee determined that the reprimand is an appropriate resolution for conduct of this nature.

The Committee also carefully considered the submissions of the parties with respect to publication with or without the name of the Member. The Committee determined that publication without name is appropriate in the circumstances of this case. The Committee finds that the resolution of this case sufficiently addresses the objectives of specific and general deterrence, while balancing the interests of transparency against the privacy interests of the Member.

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

Date: January 5, 2015

Monique Lapalme Arseneault

Chair, Discipline Panel

Alexander Bass, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel