Ontario College of Teachers v. Spence, 2015 ONOCT 74

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Spence, 2015 ONOCT 74

Date: 2015-10-05

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

Stephen Michael Spence, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair Stéphane Vallée, OCT Marie-Claude Yaacov

BETWEEN:

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

– and –

STEPHEN MICHAEL SPENCE (CERTIFICATE #159073) Robert Whillans, Ursel Phillips Fellows Hopkinson LLP, for Stephen Michael Spence

Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: September 24, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 24, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 5, 2014 (Exhibit 1) was served on Stephen Michael Spence (the “Member”), requesting his presence on June 30, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for September 24, 2015.

The Member was in attendance for the hearing and had legal representation.

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 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(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 supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(f) 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);

(g) 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

(h) 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 the following:

1. Stephen Michael Spence is 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 an employee of the Waterloo Region District School Board (the “Board”) and was a teacher at [XXX] (the “School”) in Kitchener, Ontario.

3. During the 2011-2012 academic year, the Member taught [XXX] to students in Grades [XXX], [XXX], and [XXX].

Allegations Relating to Classroom Management in the [XXX]

4. On September 7, 2011, the Member asked a group of students in his class to move some equipment from an outside storage bin into the classroom. The students moved an [XXX] into the classroom on a wheeled stand. Once in the classroom, the [XXX] fell over. The Member requested the group of students who had wheeled it in, to lift it back up onto the stand. Only one student was willing to comply. As a result of trying to lift the [XXX] alone, this student was transported by ambulance to hospital, where he was diagnosed with a lower back sprain and instructed to seek chiropractic and physiotherapy treatment. Attached to Exhibit 2 at Tab “B” is a copy of the OSBIE Incident Report relating to the incident.

5. On September 13, 2011, two Board administrators attended the Member’s [XXX] during one of the Member’s teaching periods and determined that there were three female students unsupervised in the Member’s [XXX]. The three students were not working directly with equipment or [XXX] at the time. Attached to Exhibit 2 at Tab “C” is a copy of the Letter of Expectation dated October 20, 2011, received by the Member following the September 7 and 13, 2011 incidents.

6. On September 22, 2011, an inspector from the Ministry of Labour visited the School to conduct a Hazard Analysis on all equipment in the School’s science labs and [XXX]. Four orders were issued to the School upon completion of the inspection. One of the four orders issued concerned the Member’s [XXX]. The Occupational Health and Safety Act states that “an employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker. The employer shall ensure that workers wear [XXX] appropriate for the circumstances”. The inspector found that at the time of his visit, despite appropriate posting of the Occupational Health and Safety Act, “workers in the [XXX] were not wearing [XXX] appropriate for the circumstances”. The inspector ordered compliance by September 26, 2011. Attached to Exhibit 2 at Tab “D” is a copy of the Ministry of Labour’s Field Visit Report and Notice of Compliance.

7. The Member did comply with the Notice of Compliance, and received no further orders from the Ministry of Labour relating to this or any other issue.

8. Board administrators met with the Member on November 17, 2011, to provide the Member with a letter detailing their expectations, which focused on safety in the [XXX], among other issues. Attached to Exhibit 2 at Tab “E” is a copy of the Letter of Expectation to the Member, dated November 28, 2011.

Harassment of a Female Colleague

9. The Member and Colleague A, a female colleague at the School, were involved in a personal relationship that ended at some point during 2010-2011 academic year. The relationship did not end well. Between July and October 2011, the Member sent many personal emails to Colleague A, in which he expressed his feelings for her.

10. On October 19, 2011, the Member sent an email to Colleague B, another female colleague at the School, in relation to Colleague A, in which the Member referred to confronting Colleague A. Near the end of his email he wrote: “I have all the cards…she doesn’t believe I will use them. But if things don’t start reversing soon, I can be revengeful”. Attached to Exhibit 2 at Tab “F” is a copy of the email.

11. Board administrators were advised of the contents of the email on October 31, 2011, at which time they contacted police because they were concerned that the Member constituted a threat to Colleague A. Police investigated and concluded that neither the contents of the email, nor the Member, constituted a threat to Colleague A.

12. On October 31, 2011, administrators met with the Member to discuss the email. At this meeting, the Member identified concerns relating to his mental health. Specifically, he explained that he began to attend bi-weekly counselling sessions in early September 2011 from a social worker regarding concerns relating to anxiety, depression, and obsessional thoughts. He received additional counselling from the Canadian Mental Health Association between October 7 and November 8, 2011, and met with a psychologist for cognitive behaviour therapy sessions. Administrators referred the Member to an EAP program. They followed up with the Member’s counsellor in November 2011, and were advised that the Member continued to receive ongoing treatment.

13. Colleague A was advised of the contents of the email. She requested that the Member refrain from contacting or communicating with her. The Member agreed to abide by Colleague A’s request, unless she initiated contact with him.

14. Administrators drafted a document dated November 2, 2011, that was signed by both the Member and Colleague A, and outlined the expectations to be followed by the Member so that Colleague A could “feel comfortable and safe in her work and home environment”. Attached to Exhibit 2 at Tab “G” is a copy of the Letter of Expectation dated November 2, 2011.

15. Following an investigation into the Member’s email about Colleague A and the circumstances surrounding it, the Principal concluded that the email contained “references that constitute threats to this staff member’s family, job and overall well-being”. The Member received a Letter of Discipline dated November 14, 2011, in which the Principal made it clear that the email was “inappropriate” and that communications with other Board staff “should be on a professional level”. The Member was suspended for one day without pay and was required to provide a medical assessment to determine when he was capable of returning to work. Attached to Exhibit 2 at Tab “H” is a copy of the Letter of Discipline dated November 14, 2011.

Inappropriate Contact with Student

16. On April 19, 2012, a [XXX}year-old female student at the School reported to administrators that earlier that day she had visited the Member in his classroom while his class was in session. According to the student, while she was in his classroom the Member put his arm around her and kissed her on her neck. The Member acknowledged to administrators that he had consoled and hugged this student in the past, and on this occasion he had put his arm around her and “caught her on the hair”. He promised to stop all physical contact with students. Attached to Exhibit 2 at Tab “I” is a copy of the Letter of Discipline to the Member dated May 15, 2012. In the letter, the Principal explicitly referred to the fact that the Member had received professional counselling and support specifically related to professional boundaries and communication in the past and, therefore, was expected to have an awareness of what constituted appropriate and inappropriate behaviour professionally.

Destruction of Board-Owned [XXX]

17. In June 2012, on the final day of school, the Member allowed students to destroy a Board-owned [XXX] which was destined to be [XXX], as a “treat” for the end of the school year. The Member did not request permission from administrators first. This event had occurred in prior years and the Member believed administrators were aware of this fact.

18. By letter dated October 10, 2012, administrators informed the Member that a review of his actions over the previous academic year revealed the following concerns: inappropriate and unprofessional behaviour, inappropriate supervision of students, a lack of professional judgment, and, insufficient consideration of safety issues regarding student safety. Administrators concluded that the destruction of the Board-owned [XXX] in June 2012 was the culminating incident that led to the decision to terminate the Member’s employment with the Board. Attached at Exhibit 2 at Tab “J” is a copy of the Letter of Discipline to the Member dated October 10, 2012.

19. In December 2012, following the resolution of a grievance filed on behalf of the Member, the Member’s employment was reinstated in exchange for his irrevocable resignation, effective March 31, 2013.

GUILTY PLEA

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

21. 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(7.1), 1(7.2), 1(7.3), 1(11), 1(15), 1(18), and 1(19). The Member also admits that he engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

22. 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.

23. 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 Agreed Statement of Facts and Guilty Plea, 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(7.1), 1(7.2), 1(7.3), 1(11), 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 19 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 accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(11), 1(15), 1(18) and 1(19).

Paragraphs 4 to 8 of the Agreed Statement of Facts and Guilty Plea, which relate to the Member’s classroom management in the [XXX], demonstrate that the Member contravened Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(11) and 1(15).

Paragraphs 9 to 15 of the Agreed Statement of Facts and Guilty Plea, which relate to the Member’s harassment of a female colleague, demonstrate that the Member contravened Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

Paragraph 16 of the Agreed Statement of Facts and Guilty Plea, which relates to the Member’s inappropriate contact with a student, demonstrates that the Member contravened Ontario Regulation 437/97, subsection 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).

Paragraphs 17 to 18 of the Agreed Statement of Facts and Guilty Plea, which relate to the Member’s decision to allow students to destroy a Board-owned [XXX], demonstrate that the Member contravened Ontario Regulation 437/97, subsection 1(5), 1(11), 1(15), 1(18) and 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 4), 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 nine months commencing on the date of the Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;

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

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries with colleagues and with students, subject to the following conditions:

(i) the Member will provide to a course provider approved by the Registrar, 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;

(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of 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 the name of the Member is warranted in this case. Counsel for the College submitted that the Member was involved in several incidents, each of which amounted to professional misconduct. The Member demonstrated a lack of proper classroom management and a disregard for student safety, he harassed a female colleague, and he made inappropriate physical contact with a student.

College Counsel referred the Committee to seven cases involving inadequate student supervision and inappropriate professional interactions with colleagues and students: Ontario College of Teachers v. Neumann, 2014 LNONCTD 23, Ontario College of Teachers v. Gagnon, 2009 LNONCTD 31, Ontario College of Teachers v. Meeker, 2014 LNONCTD 101, Ontario College of Teachers v. Ciraco, 2015 LNONCTD 47, Ontario College of Teachers v. Eyiah, 2015 LNONCTD 21, Ontario College of Teachers v. Ward, 2013 LNONCTD 103 and Ontario College of Teachers v. Park, 2012 LNONCTD 50. College Counsel urged the Committee to consider these cases when making its determination with respect to publication.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. Counsel for the Member submitted that the Committee has the discretion to order publication with or without the name of the Member. According to Member’s Counsel, publishing the Member’s name in the College’s official publication is unnecessary because the Member has already been disciplined by the Board with respect to the incidents contained in the Agreed Statement of Facts and Guilty Plea and he has not engaged in any similar conduct since then. There is no value added by publishing the Member’s name in the College’s official publication. Counsel for the Member argued that the specific deterrence aspect of the penalty is satisfied as the Member has learned from the Board’s discipline and reprimands.

Counsel for the Member referred the Committee to two cases in which publication without name was ordered: Ontario College of Teachers v. McCalla, 2015 LNONCTD 53 and Ontario College of Teachers v. Thomason, 2010 LNONCTD 31. According to Counsel for the Member, the Committee should carefully consider the mitigating factors in this case, including the Member’s initiative to seek counselling in order to address his difficulties and his willingness to resolve his shortcomings in response to Board intervention. Counsel for the Member submitted that although the Member was disciplined for several instances of misconduct, there was no similarity between each incident of misconduct nor was the misconduct repeated once addressed by the Board.

Member’s Counsel submitted that the cases presented by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Reply Submissions of College Counsel

In reply, College Counsel responded to the submission of Member’s Counsel that the Member’s initiative to seek counselling was a mitigating factor. According to College Counsel, whether or not the Member’s initiative can be viewed as a mitigating factor, the Member continued to teach while seeking counselling. As such, he must be held to the same high standards to which all teachers are held, and he was expected to function at the same level as all other members of the teaching profession.

College Counsel further submitted that there was no proof that the Member’s difficulties for which he sought counselling contributed in any way to the incidents of misconduct as set out in the Agreed Statement of Facts and Guilty Plea. Counsel for the College cautioned the Committee against drawing unwarranted inferences from the facts contained in the Agreed Statement of Facts and Guilty Plea.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The reprimand will allow the College to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that a nine month suspension is reasonable and appropriate given the circumstances. The suspension reaffirms the inappropriate and serious nature of the Member’s conduct and serves as a specific deterrent to the Member. As a general deterrent, the suspension informs other members of the profession that conduct of this nature gives rise to significant consequences.

The Committee finds that the course of instruction regarding professional boundaries with colleagues and with students will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students, in the event of his return to teaching.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Although the Member may not have repeated any of the specific conduct for which he was disciplined by the Board, he still engaged in professional misconduct on numerous occasions. Despite the disciplinary measures imposed by the Board, the Member continued to demonstrate poor professional judgment.

Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves as a general deterrent by reminding other members of 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 5, 2015

Wes Vickers, OCT Chair, Discipline Panel

Stéphane Vallée, OCT Member, Discipline Panel

Marie-Claude Yaacov Member, Discipline Panel