Ontario College of Teachers v. Udema, 2015 ONOCT 82

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Udema, 2015 ONOCT 82

Date: 2015-06-18

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

Bert Udema, OCT, a member of the Ontario College of Teachers

PANEL: Christine Bellini, OCT, Chair Jean-Luc Bernard, OCT

Shanlee Linton, OCT

BETWEEN: ) ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

• and – )

BERT UDEMA ) Bert Udema was not present

(CERTIFICATE #169297) ) and did not have legal representation

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: May 27, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 27, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated April 4, 2014 was served on Bert Udema (the “Member”), requesting his attendance before the Discipline Committee on April 30, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 27, 2015.

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

Counsel for the College submitted an Affidavit of Daniela De Bartolo (Exhibit 2) sworn May 25, 2015, to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. De Bartolo, a law clerk with McCarthy Tétrault LLP, outlined her communications with the Member and provided proof of service of all required documents. In a voicemail message from the Member to Ms. De Bartolo dated May 15, 2015, (transcribed and found at Exhibit 2, Tab F) the Member confirmed that he had received correspondence from College Counsel dated May 12, 2015 informing him of the date of the hearing. Furthermore, the Member agreed that the hearing could proceed as scheduled, in his absence, and he agreed to the penalties being sought by the College.

In light of this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought. The Committee therefore proceeded to hear the matter in the absence of the Member.

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 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);

(c) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(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. At all material times, Bert Udema was a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Waterloo Region District School Board (the “Board”) as a teacher in Waterloo, Ontario.

3. On or about March 8, 2013, the Member was convicted of Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada).

4. On or about October 12, 2012, the Member was found guilty and convicted of Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada).

5. On or about August 19, 2011, the Member was found guilty and convicted of:

(a) Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada);

(b) Breach of Probation Order contrary to subsection 733.1(1) of the Criminal Code (Canada).

6. On or about July 13, 2011, the Member was found guilty and convicted of Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada).

7. On or about July 29, 2010, the Member was found guilty of Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada).

8. The Member failed to provide complete and/or truthful information to the Board concerning his criminal history, including information required to be collected under Regulation 521/01.

9. In or about October 2012, the Member asked a student not to tell anyone that he had seen the Member under arrest in the provincial courthouse.

10. The Member has not appealed any of the findings and/or sentences.

11. The Member resigned from the Board on or about June 30, 2013.

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.

THE EVIDENCE

College Counsel entered into evidence the Registered Member Information for Bert Udema (Exhibit 3), which indicates that the Member was registered with the College during the period of the alleged events. Counsel for the College also provided the Committee with a Brief of Court Documents: Her Majesty The Queen v. Bert Udema (Exhibit 4) which contained the following documents:

TAB

DOCUMENT

PAGE No.

A.

Certified Copy of Court Information Court Transcript before Mr. Justice of the Peace J.J. Zigler dated April 3, 2009

1-9

B.

Certified Copy of Court Information Transcript of Proceedings at Set Date before his Worship Justice of the Peace A. Child dated May 1, 2009

1-8

C.

Transcript of Proceedings (Guilty Plea) before the Honourable Mr. Justice J.T. Lynch dated July 29, 2010

1-17

D.

Certified Copy of Court Information Certified Copy of Probation Order Transcript of Proceedings at Guilty Plea before the Honourable Justice M.F. Woolcott dated July 13, 2011

1-24

E.

Certified Copy of Court Information Certified Copy of Fine Order/Victim Surcharge Transcript of Proceedings at Guilty Plea and Reasons for Sentence before the Honourable Justice J.T. Lynch dated August 19, 2011

1-15

F.

Certified Copy of Court Information Certified Copy of Probation Order Certified Copy of Fine Order/Victim Surcharge Transcript of Proceedings at Guilty Plea and Reasons for Sentence before the Honourable Justice S.M. Nicklas dated October 12, 2012

1-22

G.

Certified Copy of Court Information Certified Copy of Probation Order Transcripts of the Proceedings at Guilty Plea before the Honourable Justice J.T. Lynch dated March 8, 2013 and May 17, 2013

1-34

The evidence presented in the Brief of Court Documents confirms that on July 29, 2010, July 13, 2011, August 19, 2011, October 12, 2012 and March 8, 2013, the Member pleaded guilty to Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada). On August 19, 2011, the Member also pleaded guilty to Breach of Probation Order contrary to subsection 733.1(1) of the Criminal Code (Canada).

The Member has not appealed any of the convictions or sentences imposed on him.

SUBMISSIONS ON FINDING

College Counsel submitted the Brief of Court Documents in support of the allegations contained in the Notice of Hearing.

College Counsel submitted that the Member’s behaviour, as detailed in the record of the criminal proceedings and the resultant criminal convictions, provides a sufficient basis to justify a finding of professional misconduct under the heads of misconduct alleged in the Notice of Hearing.

College Counsel submitted that the Member engaged in multiple acts of shoplifting which resulted in escalated criminal penalties, and that this was a clear demonstration of the Member’s failure to maintain the standards of the profession.

Counsel for the College further submitted that teachers are expected to be role models both inside and outside of the classroom. Given that the Member was convicted of Theft Under $5,000.00 five times in three years, his conduct fell far below the standards to which teachers are held.

College Counsel stated that the Member contravened a law and was convicted under the Criminal Code (Canada), which would justify a finding under subsection 1(16) of Ontario Regulation 437/97.

Counsel for the College further submitted that the Member failed to notify his employer on his Annual Offense Declaration Form of his criminal convictions, which can be viewed as disgraceful, dishonourable and unprofessional, and conduct unbecoming a member, contrary to subsections 1(18) and 1(19) of Ontario Regulation 437/97.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, 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(16), 1(18) and 1(19).

REASONS FOR DECISION

Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) provides that:

13.03(1) Proof that a person has, in proceedings before a court in Canada, been convicted or discharged of an offence following a finding of guilt is proof, in the absence of evidence to the contrary, that the offence was committed by the person, if:

(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b) an appeal of the conviction or discharge was taken but dismissed or abandoned and no further appeal is available.

13.03(2) Sub-rule (1) applies whether or not the convicted or discharged person is a party to the proceeding.

13.03(3) A certificate of conviction or discharge or certified copy of a Court Information meeting the requirements of sub-section 22.1(3) of the Evidence Act (Ontario) shall be accepted by the Committee as proof that the person was convicted or discharged of the offence for purposes of sub-rule (1).

Rule 13.04 of the Rules provides that:

13.04(1) Where a certificate of conviction or discharge or certified copy of a Court Information has been admitted in evidence under sub-rule 13.03(3), the Committee shall also admit as ancillary to the certificate of conviction or discharge or certified copy of a Court Information, the specific findings of fact contained in the court's reasons for judgment or reasons for sentence, which findings of fact are proof, in the absence of evidence to the contrary, of the facts so found.

13.04(2) The Committee may, in its discretion, admit as incidental to the certificate of conviction or discharge or certified copy of a Court Information, transcripts of the proceedings at which the conviction or discharge occurred for the purpose of explaining the finding of guilt made at such proceeding.

13.04(3) The Committee may, in its discretion, admit findings of fact, whether or not supportive of a finding of guilt, made in prior criminal, civil or administrative proceedings as proof, in the absence of evidence to the contrary, of the facts so found.

Accordingly, the Committee accepts the certified copies of the various Court Informations contained in Exhibit 4, as proof that the Member was found guilty and convicted of the offences described therein, including Theft Under $5,000.00 contrary to subsection 334(b) of the Criminal Code (Canada) and Breach of Probation Order contrary to subsection 733.1(1) of the Criminal Code (Canada). The Member was found guilty and convicted in a Canadian court, the Committee was not presented with any evidence to the contrary, and no appeal has been granted.

The evidence before the Committee demonstrates that the allegations of professional misconduct contained in the Notice of Hearing have been proven, on a balance of probabilities. By committing five acts of Theft Under $5,000.00 during a three year period, the Member has engaged in conduct unbecoming a Member and he has failed to maintain the standards of the profession. Teachers are expected to be role models both inside and outside of the classroom, and the Member’s conduct demonstrated that he failed to meet this expectation.

In addition, the Committee finds that the Member has failed to comply with subsection 264(1) of the Education Act. Through his dishonest conduct, the Member has not fulfilled the duties of a teacher, as defined in the Education Act.

The Committee further finds that the Member’s contravention of subsections 334(b) and 733.1(1) of the Criminal Code (Canada) call into question his suitability to hold a Certificate of Qualification and Registration.

Moreover, the Committee finds that it was unprofessional that the Member failed to provide complete and/or truthful information to the Board concerning his criminal history.

Accordingly, the Committee finds that the Member’s conduct and subsequent criminal convictions constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).

SUBMISSIONS ON PENALTY

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

1. a reprimand;

2. a six month suspension of the Member’s Certificate of Qualification and Registration;

3. a number of terms, conditions or limitations, which generally include the following:

(a) prior to commencing or resuming a teaching position or any other 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 professional ethics;

(b) the Member shall not commence or resume a teaching position or any other position for which a Certificate of Qualification and Registration is required, unless the Member has first provided to the Registrar, at the Member’s own expense and in a form satisfactory to the Registrar, a written report from a psychiatrist or other physician acceptable to the Registrar;

(c) the Member shall not commence or resume a teaching position or any other position for which a Certificate of Qualification and Registration is required unless the Member has first provided to the Registrar an undertaking, in a form satisfactory to the Registrar, confirming that the Member has complied with any treatment, monitoring or recommendation made by the assessing physician; and

4. publication of the findings and order of the Committee, in summary form, with respect to the findings of professional misconduct only, with the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession.

With respect to the specific language of the penalty order, Counsel for the College provided a Draft Joint Submission on Penalty to assist the Committee. Although the Member did not sign the draft, he acknowledged reviewing it and agreeing with its recommendations in a voicemail (see Exhibit 2, Tab F).

College Counsel submitted that the key features that the Committee must consider when making its penalty order are specific deterrence, general deterrence, rehabilitation of the Member, and sanctions that address the professional misconduct.

Counsel for the College submitted that aggravating factors in this case include the multiple incidents of shoplifting that occurred over an extended period of time, which resulted in increasing penalties imposed on the Member by the criminal courts.

With respect to mitigating factors, College Counsel submitted that the relatively minor nature of the Member’s offenses should be taken into consideration by the Committee.

Regarding the proposed reprimand, Counsel for the College submitted that the reprimand would address the specific deterrent aspect of the penalty and would serve as a rehabilitative tool for the Member. College Counsel suggested that the Member should receive the reprimand prior to his return to teaching as he is currently not an active member of the teaching profession.

Regarding the proposed suspension, Counsel for the College submitted that the Member demonstrated a repeated pattern of criminal activity which warrants some form of suspension. College Counsel further submitted that a six month suspension would serve as a specific deterrent to the Member and a general deterrent to members of the profession, by reminding them that there are serious consequences for the type of conduct in which the Member engaged.

With respect to the course in professional ethics, Counsel for the College submitted that this type of coursework will assist in the rehabilitation of the Member, if he chooses to return to the teaching profession.

Counsel for the College further submitted that, since there may be an indication of certain medical issues, it is necessary to include a condition in the penalty order that, prior to the Member’s return to the teaching profession, a psychiatrist or a treating physician has confirmed, to the Registrar’s satisfaction, that the Member is able to return to work.

Finally, Counsel for the College submitted that publication of a summary of the findings and order of the Committee with the name of the Member is necessary in this case, as it fosters and promotes the transparency of the discipline process.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. Prior to commencing or resuming a teaching position or any other position for which a Certificate of Qualification and Registration is required, the Member is directed to appear before the Committee on a date to be arranged by the Member through the Hearings Office, 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. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six 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. The Registrar is directed 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 is to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or resuming a teaching position or any other 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 professional ethics;

(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 Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course.

(c) the Member shall not commence or resume any teaching position or any other position for which a Certificate of Qualification and Registration is required, unless the Member has first provided to the Registrar, at the Member’s own expense and in a form satisfactory to the Registrar, a written report from a psychiatrist acceptable to the Registrar:

(i) confirming that the psychiatrist has reviewed the Decision, Reasons for Decision and Orders of the Discipline Committee;

(ii) confirming that the psychiatrist has examined the Member within the last 30 days and has concluded that the Member is able to return to a teaching position or any other position for which a Certificate of Qualification and Registration is required, without risk of adverse consequences to students or any other person; and

(iii) confirming that the psychiatrist has received access to any medical, employment, or other information that he or she requires to complete an adequate assessment.

(d) the Member shall not commence or resume teaching or any other position for which a Certificate of Qualification and Registration is required unless the Member has first provided to the Registrar an undertaking, in a form satisfactory to the Registrar, confirming that the Member has complied with any treatment, monitoring or recommendation made by the assessing psychiatrist referred to in paragraph 3(c) above.

4. The findings and order of the Committee shall be published in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

In arriving at its penalty decision, the Committee carefully considered the submissions of College Counsel, as well as the aggravating and mitigating factors in this case. The Committee has determined that the aggravating factors outweigh the mitigating factors. Although the nature of the Member’s offenses were relatively minor, and the value of the goods that he shoplifted were of nominal value, the Member engaged in criminal activity at least five times over the course of three years. Moreover, despite the escalating criminal penalties imposed on the Member, he continued to steal and he did not learn from his previous mistakes.

Accordingly, the Committee has determined that the appropriate penalty in this case is: to order a reprimand; to direct the Registrar to suspend the Member’s Certificate of Qualification and Registration for a period of six months; to direct the Registrar to impose terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, which include the Member’s successful completion of a course of instruction pre-approved by the Registrar with an emphasis on professional ethics, and the receipt of confirmation from a psychiatrist that the Member is able to return to the teaching profession without risk of adverse consequences to students or to anyone else; and, to publish a summary of the findings and order of the Committee with the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession.

The Committee finds that a reprimand is appropriate in this case, and that the Member should receive it prior to commencing or returning to a teaching position. A reprimand addresses the need for specific deterrence and will encourage the Member to consider his actions in the future. It will ensure that the Member hears from the Committee directly that his conduct was unacceptable, unprofessional, and did not meet the College’s standards or the public’s expectations.

The Committee also finds that a six month suspension is reasonable and appropriate given the circumstances. The suspension will serve as a specific deterrent in that it will show the Member that his conduct was unacceptable, and because it will appear on his teaching record. The suspension will also act as a general deterrent to other members of the teaching profession as it will remind them that there are serious consequences for the type of conduct in which the Member engaged.

In addition, the Committee finds that the Member must successfully complete a course in professional ethics prior to returning to the teaching profession. The course will serve a rehabilitative purpose, as it will help the Member to better understand his professional responsibilities as a teacher, both inside and outside of the classroom.

The Committee further finds that the remaining terms, conditions or limitations imposed on the Member’s Certificate of Qualification and Registration are reasonable and warranted given the Member’s conduct. The Committee is satisfied that there is a sufficient basis to require the Member to be assessed by a psychiatrist and to comply with any treatment, monitoring or recommendation made by the psychiatrist. This will ensure that, prior to returning to the teaching profession, the Member does not pose a risk to students or to any other person. This condition will also ensure the protection of the public, which is an important objective for the College.

Finally, the Committee finds that publication with the Member’s name, in Professionally Speaking/Pour parler profession, is warranted in this case. Publication with name serves the important goals of specific and general deterrence, and transparency. The Committee finds that publication with name will serve as a specific deterrent to the Member as it will reinforce that his conduct was unacceptable and will not be tolerated. Publication with name will serve as a general deterrent to the profession as it will inform members of the profession that there are serious consequences to engaging in incidents of professional misconduct. Finally, publication with name ensures the transparency of the discipline process, which inspires public confidence.

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

Dated: June 18, 2015

______________________________ Christine Bellini, OCT

Chair, Discipline Panel ______________________________ Jean Luc Bernard, OCT Member, Discipline Panel

Shanlee Linton, OCT

Member, Discipline Panel