Ontario College of Teachers v. Towler, 2015 ONOCT 79

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Towler, 2015 ONOCT 79

Date: 2015-11-18

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 Joseph Towler, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair

Jane Ishibashi

Sara Nouini, OCT

BETWEEN: ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

– and – )

ROBERT JOSEPH TOWLER ) Jerry Raso,

(CERTIFICATE #168087) ) Ontario English Catholic Teachers’

) Association,

) for Robert Joseph Towler )

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: November 9, 2015

DECISION, REASONS FOR DECISION AND ORDER

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

A Notice of Hearing dated January 10, 2012 (Exhibit 1) was served on Robert Joseph Towler (the “Member”), requesting his presence on January 30, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 9, 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 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1)(c) or the regulations made thereunder, 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).

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. At all material times, Robert Joseph Towler was a member of the Ontario College of Teachers (Exhibit 2 at Tab “A”).

2. At all material times, the Member was employed by the Halton Catholic District School Board (the “Board”) and taught at [XXX] School (the “School”), in Burlington, Ontario.

3. At all material times, Student 1 and Student 2 were Grade [XXX] students at the School and were taught by the Member.

4. On or about September 15, 2009, when Student 1 spoke to other students who were upset with comments that the Member was making during a discussion regarding gays and sexuality in the [XXX] class, the Member struck Student 1 on the back of the head with a binder. Attached is a copy of the statement of Student 1 (Exhibit 2 at Tab “B”).

5. On or about September 15, 2009, when students were talking in class, the Member struck Student 2 from behind on the back of the head with a book and told Student 2 to stop being so loud. Attached is a copy of the statement of Student 2 (Exhibit 2 at Tab “C” – page 2).

6. On or about September 16, 2009, the principal of the School advised the Board that five students had complained about the Member’s Grade [XXX] [XXX] class. Attached are copies of the email dated September 16, 2009 from the principal to the Board and the statements of three of the students (Exhibit 2 at Tab “D”).

7. Furthermore, on or about September 17, 2009, the principal had a discussion with the parent of one of the students in the Member’s class regarding information the student was bringing home about the Member’s inappropriate behaviour in the classroom. Attached is a copy of the email dated September 23, 2009 from the principal to Stephanie Strong of the Board regarding the discussion with the parent (Exhibit 2 at Tab “E”).

8. On or about September 17, 2009, the Member was suspended with pay pending an investigation with respect to inappropriate behaviour towards students. Attached is a copy of the letter dated September 17, 2009 from the Board to the Member (Exhibit 2 at Tab “F”). The Member had been previously disciplined by the Board for inappropriate conduct towards students.

9. On or about October 20, 2009, the Member was suspended for five days without pay as a result of the investigation into the incidents noted in paragraphs 4 and 5 above. Attached is a copy of the letter dated October 20, 2009 from the Board to the Member (Exhibit 2 at Tab “G”).

10. The Member returned to his teaching duties on October 27, 2009.

11. On or about November 11, 2009, the principal met with the Member to review and discuss a list of expectations for Semester 1, 2009. The Member’s “bullying” behaviour in the classroom and that students were afraid to question him were included in this discussion. Attached is a copy of the Principal’s notes of the meeting on November 11, 2009 (Exhibit 2 at Tab “H”).

12. Following the Member’s return to the classroom on October 27, 2009 the Member:

(a) yelled at students;

(b) made inappropriate comments to students including but not limited to:

(i) told the class and/or individual students to “shut up”;

(ii) called a student or students “loser”;

(iii) called a student ‘whacked’;

(iv) told a female student she chewed gum “like a cow” and was “disgusting”;

(v) called a male student a “little girl”;

(c) referred to two male students as being gay; and

(d) stated to one of the male students as he left the classroom, “Don’t pick up any boys on the way to the office”.

13. Between October 29, 2009 and December 2009 a number of students made complaints to the School administration about the Member’s conduct in the classroom. Attached are copies of the letters of complaint (Exhibit 2 at Tab “I”).

14. On or about December 14, 2009, Mr. Paulter, the Director of Education for the Board, received a petition signed by the parents of eight students objecting to the Member’s return to the classroom. Attached hereto is a copy of the letter dated December 14, 2009 from the parents to Mr. Paulter. (Exhibit 2 at Tab “J”).

15. On or about December 15, 2009 the Member was suspended with pay from the Board pending an investigation. Attached hereto is the letter dated December 16, 2009 from the Board to the Member (Exhibit 2 at Tab “K”).

16. A summary of the Board’s investigation into the complaints is attached hereto as “Students’ Testimonies re R. Towler” along with a further handwritten statement from a student dated January 25, 2010 (Exhibit 2 at Tab “L”).

17. On or about February 4, 2010, the Member was advised by the Board that it would be seeking termination as a result of the misconduct and the inappropriate and demeaning comments made to students. On or about February 16, 2010, the Member was terminated by the Board. Attached is a copy of the Board’s letter dated February 4, 2010 and the Board’s In-Camera Staff Report dated February 16, 2010 (Exhibit 2 at Tab “M”).

GUILTY PLEA

18. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).

19. The Member hereby acknowledges that the Admitted Facts referred to in paragraph 3 to 12 above constitute professional misconduct, being more particularly a breach of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).

20. 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.

21. 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(7.1), 1(7.2), 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 17 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(7.1), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 3, 4, 5, 6, 7, 12, 13 and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 4 and 12 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 4 and 5 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 4, 5, 11, 12 and 13 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 3, 4, 5, 6, 7, 12, 13 and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1)(c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 3, 4, 5, 6, 7, 12, 13 and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

Paragraphs 3, 4, 5, 6, 7, 12, 13 and 14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

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 six months, with such suspension having been served from September 1, 2010 to March 1, 2011. The fact of the suspension 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) prior to any return to teaching or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding anger management;

(b) prior to any return to teaching or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management;

(c) within 30 days of his completion of the courses outlined in (a) and (b) 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, made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and

(ii) the Member has successfully completed the courses.

4. direct that there be publication of the finding 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 to whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that publication with name is necessary notwithstanding the other sanctions proposed in the Joint Submission on Penalty as it fosters transparency. It also acts as an effective specific deterrent to the Member and as a general deterrent to the teaching profession. Counsel for the College submitted that, since the proposed penalty includes a six-month suspension, which indicates the serious nature of the Member’s misconduct, it is appropriate to publish the name of the Member in order to protect the public interest and satisfy the objective of transparency.

Counsel for the College referred the Committee to one analogous case to assist with its determination of the issue of publication: Ontario College of Teachers v. Cobden, 2011 LNONCTD 14. According to College Counsel, even though the conduct in that case was less serious than the Member’s conduct, publication with name was ordered. Accordingly, College Counsel urged the Committee to order publication with the Member’s name in in the matter at hand.

Submissions of Member’s Counsel

Member’s Counsel submitted that publication with name is not warranted in the Member’s case, and noted that publishing the Member’s name is not mandatory or automatic; rather, the Committee has the discretion to order publication with or without the Member’s name. Member’s Counsel urged the Committee not to publish the Member’s name in the College’s official publication.

According to Member’s Counsel, publication with name is not necessary to achieve the goals of specific deterrence, general deterrence, rehabilitation and transparency. Ordering the publication of the Member’s name accomplishes nothing other than the public shaming of the Member.

Member’s Counsel further submitted that publication of the Member’s name would be of no interest to anyone outside of the Member’s Board. He noted that the discipline process is a public process and that the identity of the Member is easily accessible to the public and the Member’s colleagues through information available on the College’s website. Accordingly, Member’s Counsel submitted that publication with name offers no added value in terms of the penalty objectives of deterrence, transparency and the protection of the public interest, which are already achieved without publishing the Member’s name.

Reply Submissions of College Counsel

College Counsel replied to the submission of Member’s Counsel that publication with name is unnecessary because it would be of no interest to anyone outside of the Member’s Board. According to College Counsel, the purpose of publishing the Member’s name is not simply to inform those who know the Member about the outcome of his discipline hearing. Rather, publication with name serves as an important general deterrent because it informs other members of the profession that by engaging in similar conduct to that of the Member, they too could face serious consequences including the publication of their names in Professionally Speaking/Pour parler profession. The fact that the Member’s name can be accessed through the College’s website does not obviate the need to publish the Member’s name, because having one’s name published in Professionally Speaking/Pour parler profession remains an important deterrent, even if one’s name may also be accessed by performing a search on the College’s website.

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 misconduct warrants a reprimand. The reprimand will serve as a specific deterrent and will allow the Committee to directly address its concerns with the Member. Additionally, recording the fact of the reprimand on the Register also serves as a general deterrent as it informs other members of the teaching profession of the consequences for engaging in professional misconduct.

Given the Member’s misconduct, the Committee finds that a six-month suspension is reasonable and appropriate. The Committee has directed the Registrar to suspend the Member retroactively from September 1, 2010 to March 1, 2011. The recording of the suspension on the Register will serve as a specific deterrent to the Member as it will not be removed from the Register and will remind the Member of the consequences of engaging in professional misconduct. It also serves as a general deterrent to other members of the teaching profession as it will inform them that such behaviour will not be condoned by the College and will result in serious consequences.

The Committee finds that classroom management and anger management courses will assist in the rehabilitation of the Member. This remedial coursework is responsive to the pattern of unprofessional behaviour demonstrated by the Member. It will help him to make better decisions in any future interactions with students.

The Committee finds that publication with the name of the Member is justified in this case in that it underscores the seriousness of the Member’s repeated inappropriate conduct, despite multiple warnings and interventions by the Board. The Committee notes that the Member missed opportunities to correct his behaviour and his teaching practices prior to this hearing and that he did not learn from his mistakes, even after being sanctioned by his Board. Publication with name serves as a specific deterrent to the Member as it will hold him accountable for his actions. It also acts as a general deterrent by signalling to other members of the profession that conduct of this nature is not tolerated and will result in serious consequences. Furthermore, publishing the Member’s name in Professionally Speaking/Pour parler profession ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when serious matters 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: November 18, 2015

Marie-Claude Yaacov

Chair, Discipline Panel

Jane Ishibashi

Member, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel