Ontario College of Teachers v Winer, 2015 ONOCT 87

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Winer, 2015 ONOCT 87

Date: 2015-12-15

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

Derek Martin Winer, OCT, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair

Irene Cheung, OCT

Tom Potter

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Law Clerk

– and – )

DEREK MARTIN WINER ) Sheilagh Turkington,

(CERTIFICATE #495352) ) Cavalluzzo Shilton McIntyre

) Cornish LLP,

) for Derek Martin Winer )

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: December 8, 2015

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 8, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 14, 2014 (Exhibit 1) was served on Derek Martin Winer (the “Member”), requesting his presence on May 30, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 8, 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 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 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;

(d) 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. Derek Martin Winer 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 employed by the Hamilton-Wentworth District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

3. During the course of the 2011-2012 and 2012-2013 academic years, the Member taught [XXX] as a [XXX] teacher.

Inappropriate Comments and Conduct to Colleagues

4. In the course of the 2011-2012 school year, the Member approached two colleagues at a table that held a range of snacks and dessert and stated with sexual innuendo, “ooh, there’s lots of delicious goodies here today” and “do you have any goodies to offer me.” Colleague A felt the comment was about her breasts and Colleague B told the Member to “back off”.

5. The Member engaged in conduct and made comments, as set out below, to several female colleagues which often drew attention to their bodies or physical appearance and which sometimes involved overt sexual connotation, by:

(a) asking about making “any bad decisions this weekend?”

(b) saying “ooh is that silk?” while rubbing the sleeve of a colleague's shirt;

(c) saying “oh, if I weren’t married”;

(d) saying “there are a couple of things I would like to do” while staring at a colleague's breasts;

(e) sometimes touching colleagues’ forearms or shoulders or hair while making such comments;

(f) saying “you look hot” or “you look good today”;

(g) commenting “you have a nice figure”;

(h) stating “I like the length of your skirt”;

(i) commenting “she’s got nice legs”;

(j) saying “she is good looking”.

6. At times, the Member was knowingly using sexual innuendo or a sexually suggestive tone, intending his comments to be playful. At times, the Member thought his comments were complimentary of the colleagues. The Member did not intend to offend, humiliate or otherwise make his colleagues feel uncomfortable. He deeply regrets his conduct, appreciates that his comments were taken offensively, and that they were inappropriate and unprofessional.

Supervision

7. On October 18, 2012, the Member took three students in his [XXX] class on a field trip to the public library. Two education assistants assigned to the class also attended the trip. En route to the library, the Member assessed that they had to stop and regroup because the students needed to calm down. He moved the students from the sidewalk into a convenience store called [XXX]”. Among other things for sale, the store displayed and sold devices such as water bongs and pipes used to smoke marijuana.

Letters of Discipline

8. Following Board administrators’ investigation into the above incidents, the Member received two letters of Discipline on May 17, 2013. In the first, administrators found that the Member “lacked judgment and discretion when he failed to provide a safe environment for students” on the field trip to the public library. He was suspended without pay for five days from May 21-27, 2013. Attached to Exhibit 2 at Tab “B” is a copy of the Discipline Letter dated May 17, 2013.

9. In the second letter, administrators outlined their findings and concluded that the Member’s actions represented “gross misconduct”, and his conduct had “caused irreparable damage to the professional working relationships with the staff” at the School. He was suspended without pay for ten days from May 28-June 10, 2013, and required to complete a boundaries course. Attached to Exhibit 2 at Tab “C” is a copy of the Discipline Letter dated May 17, 2013.

10. The Member was transferred to another school within the Board at his own request, for the 2013-2014 academic year.

GUILTY PLEA

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

12. 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).

13. 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 otherwise 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.

14. 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(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 10 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(15), 1(18) [unprofessional] and 1(19).

Paragraphs 4, 5, 6 and 7 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, 5, 6 and 7 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, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 4, 5, 6 and 7 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18) [unprofessional].

Paragraphs 4, 5, 6 and 7 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 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) the Member shall enrol in and successfully complete at his own expense within 90 days of the date of this Order, a course of instruction pre-approved by the Registrar regarding communication skills with colleagues and the maintenance of professional boundaries;

(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, 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 course.

3. 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 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

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with name addresses the penalty objectives of specific deterrence, general deterrence, rehabilitation and remediation, and protection of the public interest. According to College Counsel, although the facts of this case are not at the most serious end of the spectrum of professional misconduct, they are not inconsequential.

College Counsel submitted that teachers are role models and must treat others with respect. They should be seen as breaking down stereotypes, not endorsing them. College Counsel submitted that, as an experienced teacher, the Member ought to have known that making inappropriate comments and touching female colleagues was unacceptable. The Member demonstrated a complete lack of awareness that his behaviour made his female colleagues uncomfortable.

College Counsel urged the Committee to consider the following aggravating factors when determining whether to order publication with or without the name of the Member: the Member made inappropriate comments towards female colleagues; he inappropriately touched female colleagues; he failed to recognize that his actions were obnoxious and inappropriate; and, his comments, which were of a sexual nature, were made repeatedly over a period of time. College Counsel added that the fact that the Member took his [XXX] class into a store that displayed marijuana paraphernalia was a further example of his poor judgment, which ought to be considered an aggravating factor in this matter.

College Counsel submitted that publication with name acts as a specific deterrent to the Member as it will deter him from repeating similar conduct and will emphasize the serious nature of his misconduct. It also serves as a general deterrent by informing other members of the profession and the public that the College does not tolerate this type of behaviour and that it will not shield its members from public scrutiny. Teachers are held to a high standard and must conduct themselves in a professional manner at all times.

Furthermore, College Counsel submitted that publishing the name of the Member ensures that the penalty objectives of transparency and accountability are met. It informs the public that the College is acting in accordance with its mandate to protect the public interest. College Counsel submitted that publication with name would serve to caution others “if there are still people out there who think this is the way that women want to be treated.”

College Counsel referred the Committee to three cases involving inappropriate comments made by teachers: Ontario College of Teachers v. Bryant, 2014 LNONCTD 80; Ontario College of Teachers v. Eyiah, 2015 LNONCTD 21; and, Ontario College of Teachers v. Aleksandrowicz, 2007 LNONCTD 1. College Counsel urged the Committee to rely on these analogous cases when determining the issue of publication, and noted that publication with name was ordered in each case.

Submissions of Member’s Counsel

Counsel for the Member submitted that the Committee has the discretion to order publication with or without the name of the Member, and that publication with name is not warranted in this case, in which the Member’s misconduct falls at the low end of the spectrum of professional misconduct.

According to Member’s Counsel, the Committee ought to consider the following mitigating factors, among others, when determining the issue of publication: the Member took responsibility for his actions by entering a guilty plea in this matter; he acknowledged that his comments were inappropriate; he did not have improper intentions when making the comments that Member’s Counsel characterized as banter; he did not have improper intentions when touching his female colleagues; with hindsight, he understands that his conduct was unprofessional and inappropriate; and, he began his teaching career in 2005 and has no prior discipline history at the College.

With respect to the fact that the Member took his students into a shop displaying marijuana paraphernalia, Member’s Counsel submitted that this was a spontaneous and isolated incident that occurred three years ago in an attempt to calm his students down. The Member has since cooperated by pleading guilty and by admitting the facts as set out above.

According to Member’s Counsel, publication with name is unnecessary given the other consequences that the Member already has and will face for his actions. The Member has already served a five-day suspension without pay through his Board. He will also receive a reprimand from the Committee, which will serve as a specific deterrent. Moreover, the coursework that the Member will be required to successfully complete will serve a remedial purpose and it will allow the Member to reflect on his misconduct. Member’s Counsel submitted that the proposed penalty, excluding publication of the Member’s name in the College’s official publication, is proportionate to the Member’s misconduct.

With respect to the penalty objective of transparency, Member’s Counsel submitted that the College’s official publication is not the proper vehicle to ensure transparency of the discipline process. Transparency is achieved by publishing the Committee’s decision on the College’s website. According to Member’s Counsel, publishing the Member’s name in Professionally Speaking/Pour parler profession would only amount to public shaming of the Member.

Counsel for the Member distinguished the cases submitted by College Counsel on the basis that the inappropriate comments made in those cases were made to students, whereas the Member directed his inappropriate comments to adults. Moreover, Member’s Counsel disagreed with College Counsel’s submission that the Member’s behaviour made him a poor role model for his students. Member’s Counsel submitted that the Member’s inappropriate comments or touching did not involve any students and had no bearing on whether or not he was a good role model for students.

Member’s Counsel urged the Committee to rely on the following four analogous cases when determining the issue of publication: Ontario College of Teachers v. Milsap, 2013 LNONCTD 52; Ontario College of Teachers v. Aldoroty, 2015; Ontario College of Teachers v. Lalonde, 2014 LNONCTD 18; and, Ontario College of Teachers v. Brame, 2014 LNONCTD 76. According to Member’s Counsel, the Committee should follow these cases in which the members’ names were not published in Professionally Speaking/Pour parler profession.

Reply Submissions of College Counsel

In reply to the submission of Member’s Counsel that the Member was not a poor role model for his students because his inappropriate comments and touching did not directly involve students, College Counsel submitted that the Member should still be considered a poor role model. The Member’s inappropriate comments and touching occurred in a school setting, where students might observe a teacher’s behaviour even if they are not the target of the behaviour. The Member’s behaviour was clearly inappropriate and it had a negative impact on his colleagues. While the Member may not have realized the impact of his behaviour at the time, he should have been aware that he was modeling inappropriate behaviour in the school environment.

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

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 Committee 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 the course regarding communication skills with colleagues and the maintenance of professional boundaries will assist in the process of remediation and rehabilitation of the Member. The course will also address the Member’s inappropriate and unprofessional conduct and it will serve to improve his professional judgment and decision making in order to avoid similar errors in the future.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The Member demonstrated a pattern of behaviour that involved inappropriate verbal and physical interactions with his colleagues. The Member admitted that he knew that his comments were sexually suggestive in nature. The Committee accepts that there was no ambiguity in the way that the Member’s colleagues responded to his behaviour. One colleague told the Member to “back off” and he failed to respond appropriately. The Committee notes that some female colleagues reported feeling uncomfortable and stressed as a result of these interactions. The Committee also finds that the Member exercised poor judgment when he entered a store displaying marijuana paraphernalia with his [XXX] students.

Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves as a general deterrent as it reminds the profession that, despite one’s intentions, this type of behaviour is simply not tolerable and will result in sanctions by the College. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College 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: December 15, 2015

Wes Vickers, OCT

Chair, Discipline Panel

______________________________ Irene Cheung, OCT

Member, Discipline Panel

Tom Potter

Member, Discipline Panel