DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Ronald William Woltman, OCT, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair
Christine Bellini, OCT
Irene Dembek, OCT
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,
) Law Clerk
-and- )
RONALD WILLIAM WOLTMAN ) Susan Luft,
(CERTIFICATE #180391) ) Ontario Secondary School Teachers’
) Federation,
) for Ronald William Woltman
) Marc Spector,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: October 16 & 21, 2014, ) & November 7, 2014
DECISION ON FINDING AND REASONS FOR DECISION
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 16, 2014 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated May 16, 2012 was served on Ronald William Woltman (the “Member”), requesting his presence on June 12, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set to commence on October 16, 2014. The proceedings continued on October 21 and November 7, 2014.
Ronald William Woltman was in attendance throughout the hearing.
OVERVIEW
This case involves four primary allegations brought by the College against Ronald William Woltman, who was a teacher at the [XXX] School (the “School”) at the time of the events in question. First, the Member wrote an inappropriate comment in a student’s Report Card in July 2010. The Member commented: “Love the jeans with spike heels” (the “Comment”). Second, in response to a request to attend a meeting with the principal in relation to the Comment, in September 2010, the Member left a note for the principal saying: “Now it’s your job to make this go away. Any disciplinary action will be grieved.” Third, the Member allegedly engaged in abusive behaviour towards a colleague, “A”, in October and November 2010, and sent inappropriate and disrespectful correspondence to that colleague. Fourth, the Member failed to comply with the principal’s directive to vacate the office that he shared with “A” in a timely manner.
The Committee’s task is to determine whether the facts alleged by the College have been proven, on a balance of probabilities, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee finds the Member guilty of professional misconduct.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Ronald William Woltman is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
c) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
e) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Ronald William Woltman is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Kawartha Pine Ridge District School Board (the “Board”) in Ontario and taught at [XXX] School in Ontario.
At all material times, Student #1, was a female student of the School.
In and around July, 2010, the Member wrote on the Student’s Report Card: “Love the jeans with spike heels”.
In and around September 10, 2010, following a request to attend an investigative meeting held by the Board and the School regarding the inappropriate sexual comment referred to in paragraph 4 above, the Member left a written note for the principal of the School stating that: “Now it’s your job to make this go away” and “any disciplinary action will be grieved”.
At all material times, “A” was a male teacher employed at the School.
In and around November, 2010, the Member:
(a) sent an inappropriate and disrespectful e-mail communication to “A”;
(b) made inappropriate and disrespectful comments regarding “A” to other members of the School faculty; and
(c) engaged in abusive behaviour towards “A”.
- In and around November, 2010, the Member failed to comply with a directive from the principal of the School to move his belongings from “A’s” workstation to another location.
MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
EVIDENCE OF THE COLLEGE
The College called four witnesses: Student #1, Student #1’s mother, “A” and the principal of the School during the time in question.
Student #1 described her actions after reading the Comment on her Report Card and her meeting with school officials at the School regarding the Comment.
Student #1’s mother described the events that took place before the discovery of the Comment on her daughter’s Report Card.
“A” described the numerous alleged incidents of inappropriate, unprofessional and disrespectful behaviour by the Member towards him and the steps taken to resolve these issues.
The principal described the actions taken by the School, with respect to the Member, following the alleged incidents.
Testimony of Student #1
Student #1 testified that she graduated from the School in 2010 and that the Member was her grade [XXX] [XXX] teacher during her final semester. She achieved a mark of 87% in the Member’s class.
With regard to the comment “Love the jeans with the spike heels” written by the Member on her Report Card (Exhibit 3), Student #1 testified that it was awkward and inappropriate, and something that you do not expect to hear from a teacher.
Student #1 further testified that she was apprehensive about providing her mother with her Report Card as she knew that the Comment would upset her. Student #1 had little recollection of the meeting that took place at the School following her mother’s complaint.
Student #1 stated that she did not receive an apology from the Member for the Comment and that she was unaware that he had offered to apologize to her and her family.
Under cross-examination, Student #1 stated that the Comment was uncalled for as it was about her appearance and not her academic performance. When it was suggested to her that the Member may have just intended the Comment as a friendly joke, Student #1 responded that it was still not something that should have been included on a Report Card, or even said at all by a teacher to a student.
When asked, under cross-examination, whether the Member ever singled her out in class, asked her out, said she was attractive, or gave her gifts, cards or notes, Student #1 answered that he had not. Student #1 also acknowledged that she never went to the school principal, guidance counsellor, or any other faculty member during the school year to complain that the Member made her feel uncomfortable.
Testimony of Student #1’s Mother
Student #1’s mother testified that her daughter was reluctant to show her the Report Card, and that she thoroughly reviewed her daughter’s Report Card once she received it. Student #1’s mother testified that she was very upset after reading the Comment made by the Member on her daughter’s Report Card. She stated that she found the Comment to be unacceptable and inappropriate. She expected her daughter’s school to be a safe place and the Comment made her wonder if “there was anything else going on” at the School.
Student #1’s mother recalled making an appointment for the following day and meeting with the principal and the head of guidance at the School. She testified that she remembered the meeting and that the principal was “stunned” by the Comment and advised that he would look into it and revise the Report Card.
Student #1’s Mother further testified that she wanted the incident brought to the attention of the Board and contemplated contacting the police; however, her daughter asked her to refrain from taking these steps. Student #1’s mother followed up with the School two to three months after the meeting and was told that the incident was still under investigation. According to Student #1’s mother, the Member never apologized to her or her daughter.
In cross-examination, Student #1’s mother acknowledged that she had never met the Member before and did not know what kind of rapport he had with his students. When it was suggested that she did not know the Member’s sense of humour, she agreed that she didn’t, but indicated that he still displayed a lack of professionalism. When it was suggested to her that such a comment could be made without any sexual connotation, Student #1’s mother disagreed with Member’s Counsel and indicated that such a comment was absolutely inappropriate in the school context, when it was made by a teacher to a student.
Testimony of “A”
“A” testified that he has been a teacher at the School for 12 to 13 years. During the 2010-2011 academic year, “A” shared an office with the Member. This was not the first time that he had shared an office with the Member. Prior to the 2010-2011 academic year, “A” claims to have had a good relationship with the Member. The Member had never made any comments to him about his personal hygiene or body odour and he had never disturbed “A’s” personal belongings.
“A” also described his note-keeping practices for the Committee, which were very diligent. “A” testified that he would write notes throughout the day on index cards and that he would then expand on these notes by recording the day’s events in a daily diary.
“A’s” problems with the Member began to arise in October 2010 when the Member began making comments about “A’s” body odour. “A” testified that he documented, in writing, the numerous inappropriate, unprofessional and disrespectful incidents initiated by the Member at “A’s” expense (see Exhibit 4). “A” testified that the Member commented that he smelled on October 12, 21, 25, 26, and 27, 2010.
On October 26, 2010, “A” spoke to the School caretaker about the smell in the shared office, who suggested that they could spray the room each day to see if that would help. The caretaker also suggested that the sofa cushions might be the source of the smell.
On October 28, 2010, “A” left a note on the Member’s chair asking him to remove the sofa cushions to test the caretaker’s theory. When “A” came into the office at lunch, he found his jacket (which he normally hangs on the back of his chair) shoved into his desk drawer, and the Member said that his coat smelled. “A” asked other colleagues that day whether his jacket smelled and they did not think it did.
“A” further testified that on November 8, 2010, the Member propped open their office door and complained about the smell. On November 12, 2010, the Member left the shared office and remarked, “stinky, have you been sweating?” The principal also came by the office on November 12 and asked about the smell. “A” testified that the principal said that the smell could be coming from the sofa.
Finally, on November 16, 2010, “A” found a note from the Member complaining that “A’s” coat smelled, telling him never to bring it back into the office, and notifying “A” that he had placed it in the caretaker’s office. “A” testified that his coat contained his car keys and his house keys and that the caretaker’s office was not always locked.
As a result of these incidents, “A” complained to the principal and the union representative. The union representative suggested that “A” record these incidents in writing, which he did in an e-mail dated November 16, 2010 that he sent to the Member, the principal, and the union representative (see Exhibit 6). In this e-mail, “A” noted that, at approximately 1:00 p.m., he was doing paperwork in the shared office when the Member entered. “A” asked the Member to leave his coat alone and the Member yelled to get the coat out of the office and to not bring it back. The Member also yelled “you’re sick” to “A”. According to “A”, he and the Member did not make any physical contact during that exchange. If any contact was made, “A” testified that it was not intentional and that they were probably just trying to get out of each other’s way in the small office.
“A” further testified that he filed a grievance that the Member had repeatedly been discourteous towards him, that he was harassing him, and that the Member moved “A’s” personal property (his coat that contained his car keys and his house keys) from a secure area to an unsecured area of the School.
“A” testified that, on November 17, 2010, the Member replied to his e-mail, also by e-mail (Exhibit 7). In his e-mail, the Member made a number of statements with which “A” disagreed. For instance, “A” disagreed that he yelled at the Member about the coat incident. He also disagreed with the Member’s statement that “you applied force to me without my consent by bumping me with your fat gut.” He further disagreed that they almost got into a fist fight during this incident.
According to “A”, this issue with the Member was eventually resolved when the principal moved both “A” and the Member into different offices. “A” testified that the Member never apologized for the content or the tone of his November 17, 2010 e-mail.
During cross-examination, “A” acknowledged that the first time he addressed the smell issue with the Member was in the e-mail he sent, dated November 16, 2010. Up until then, “A” had not spoken with the Member directly to ask him to stop behaving in the way that he had been.
Testimony of Jeffrey Ross Stewart
The Comment incident
Jeffrey Stewart (the “principal”) is an experienced educator. He worked as a teacher for 12 years and has worked as a vice-principal and principal for more than a decade. He was the School principal at the time of the events in question.
The principal testified that he first learned about the Comment incident when he received the complaint from the School’s guidance department. He reviewed the Report Card and then invited Student #1 and her family to the school to discuss the incident. The principal initially met with just the student and her mother, and he subsequently met with the head of guidance as well. He testified that he was in “disbelief” and “shock” that a comment of this nature, regardless of its intent, would appear on a provincial Report Card. The principal had never seen a comment like that on any other Report Card. Following his initial meeting with Student #1 and her mother, the principal brought them to the guidance department and had the comment removed from the Report Card.
The principal added that comment boxes on a Report Card are not meant for inside jokes. He noted that, although some teachers have a difficult time not writing something personalized to the student (i.e. “nice to have you in class”), comments are supposed to focus on students’ strengths, needs, and next steps. Comments like the one the Member wrote, according to the principal, are “strikingly inappropriate” and “sexual in nature”.
As a result of the Comment incident, the principal contacted the Member and requested that he attend an investigative meeting. A date was set, but the Member did not attend the meeting as he had called in sick. Instead, the Member left a written statement for the principal, which was received on September 10, 2010 (Exhibit 9). On this document, the Member wrote: “Enclosed are two copies of my statement regarding this matter. Now it’s your job to make this go away. […] Any disciplinary action will be grieved.” According to the principal, these statements felt like a threat from the Member. The principal questioned how the Member thought he could “make this go away”.
The principal further testified that, based on the Member’s written statement (see Exhibit 9), the Member clearly did not take ownership for his unacceptable conduct. The principal could not understand why the Member wrote that he refused to “apologize for this comment as there is nothing to apologize for.”
Despite having missed the initially scheduled meeting, the Member did attend an investigative meeting with Principal Stewart, Vice-Principal Mackenzie-Russell, Superintendent Roy, and an OSSTF representative on September 13, 2010 (see Exhibit 10). At this meeting, the Member apologized for having tried to bully the principal into making this incident disappear.
The Member attended a second meeting with the School administration on September 20, 2010 (see Exhibit 11), in which the Member was given the Board’s findings and decision with respect to the Comment incident. During this meeting, the principal told the Member that, while there may be some circumstances in schools where things are “smoothed over” for a teacher, this does not occur when a teacher has crossed a professional boundary. Ultimately, the Board found that the Member’s Report Card comment and his subsequent handling of the situation (i.e. threatening the principal to “make this go away”) were unprofessional. As a result, the Member was suspended by the Board without pay for two days.
During cross-examination, Member’s Counsel took the principal through his notes from the September 13, 2010 investigative meeting with the Member (Exhibit 10). The principal acknowledged that, in this meeting, the Member explained that he was in a rush when he was writing his Report Cards, that he liked to make personalized comments on his Report Cards, that he did not intend any sexual connotation with the Comment, that he “should write a letter to [the student and her family] to apologize and make them feel better,” and that he would refrain from making personal comments on Report Cards in the future.
The “A” incidents
The principal also testified about the alleged incidents that took place between the Member and “A”. The principal recalled that the Member had an issue with the smell and the heat in the office that he was sharing with “A”. The principal went to the shared office to investigate these concerns, while “A” was in the office, and he did not detect any off-putting odour.
The principal next heard of the interpersonal conflict between “A” and the Member when he was copied on an e-mail, dated November 16, 2010, from “A” to the Member. The principal agreed with “A” that it was inappropriate for the Member to have removed “A’s” coat from the shared office and to have left it in the caretaker’s office. The principal also found that the Member had been communicating with “A” in a threatening manner. Based on the Member’s e-mail response to “A” on November 17, 2010 (the principal was copied), the principal testified that he was surprised by the harassing tone of the Member’s e-mail and its unprofessional contents, in which the Member describes “A” as having a “pungent odour” and a “fat gut”. He further testified that the Member’s e-mail, which suggested that “A” be moved out of the shared office, was unfair towards “A” and indicated that the Member was not taking responsibility for his actions.
In order to find a solution to the conflict between “A” and the Member, the principal consulted with Vice-Principal Mackenzie-Russell. They both agreed that “A” and the Member should be asked to move to separate offices to resolve the issue. Both teachers were asked to move out by a certain date, but the Member did not comply with the initial request. Another deadline was provided to the Member and he was cautioned that there would be consequences if he did not move out by the specified date. Only at that time did the Member comply. “A”, on the other hand, moved out of the shared office by the initial deadline.
The principal further testified that another investigative meeting was held on December 19, 2010 to address the Member’s comments toward “A” and the principal, and the Member’s lack of cooperation moving out of the shared office. The outcome of that investigative meeting was that the Member was found to be uncooperative and unprofessional. On January 7, 2011, the Member received a letter from the principal advising him that he was being suspended for five days for professional misconduct (see Exhibit 15). The principal testified that the Member never apologized to him, and he was unaware of whether the Member ever apologized to “A” or to the student for any of his conduct.
During cross-examination, Member’s Counsel suggested to the principal that the Member’s delay in moving offices was because the desk space in the office he was asked to move to was still being occupied by other teachers. The principal disagreed. He testified that the Member knew how significant the situation was and how important it was for him to move offices within the requested timeline. He further indicated that the office that the Member was asked to move into had space, even if the desk itself was not completely vacated. The principal acknowledged that he did not see the Member working in the shared office after the initial moving deadline, but he maintained that much of the Member’s belongings had not been moved on time and that it was possible that the Member was still using his office even if the principal didn’t see him working there.
EVIDENCE OF THE MEMBER
Counsel for the Member called two witnesses: Scott Reid Thibeau and Brian Steven Wood, both of whom were teachers at the School at the time of the events in question. In addition, the Member testified on his own behalf.
Testimony of Scott Reid Thibeau
Mr. Thibeau testified that he had been a teacher at the School for 15 years. He was asked by the principal to move from his upstairs office (which he shared with Brian Steven Wood) to the downstairs office which was once shared by the Member and “A”. He recalled that the move did not seem pressing when the principal initially requested it, and that there was some delay between the time that he was asked to move and the time that he moved offices. He further testified that he was approached a second time by the principal regarding the move and recalled that the move happened fairly quickly at that point, as it appeared that the need to move was more urgent.
Mr. Thibeau also described his former office. He testified that there were three desks in the office (the one that was to be occupied by the Member), but that all of the desks were occupied. There were also tables butting up to the desks, on which some teachers had left their work.
Testimony of Brian Steven Wood
Mr. Wood testified that he had been a teacher at the School for more than 26 years. When he was asked to move offices in November or December 2010, he testified that there was a delay with his move and that it could have been three to seven days before he moved into the office that was once shared by the Member and “A”. Mr. Wood testified that he did not realize the urgency of the situation at the time that he was asked to move and he noted that he should have moved more quickly. Once Mr. Thibeau advised him that the move was more urgent, they both moved offices right away. Mr. Wood further testified that he had apologized to the Member and to the principal for his delayed move.
Testimony of Ronald William Woltman
The Member began his testimony by indicating that he had been a teacher at the School for 27 years.
The Comment incident
The Member acknowledged that the Comment he made on Student #1’s Report Card was totally inappropriate. He stated that he had no business talking about a student’s choice of attire in a Report Card. The Member explained that he was under a lot of stress and was very rushed when he wrote the Comment, because he had to mark exams and complete Report Cards in a very short period of time. He admitted that there was a lack of judgment on his part when he made the Comment but that he regularly made personalized comments on graduating students’ Report Cards.
The Member provided the Committee with several examples of the personalized comments that he had written on other students’ Report Cards (see Exhibits 17 to 23). The Member testified that he had been personalizing Report Cards “forever” and that many other teachers held this same practice. According to the Member, the preselected, computer generated comments were too impersonal. The Member further testified that the administration had never addressed the personalized comments with him prior to this incident.
In cross-examination, the Member also conceded that he had not received the consent of any of the students whose Report Cards he presented to the Committee as part of his defence (see Exhibits 17 to 23). He acknowledged that these hearings were open and that his evidence provided sufficient information to identify these students, particularly given that they live in a small, rural community.
Under cross-examination, the Member also acknowledged that the Ontario Ministry of Education has set standards with respect to the marking of Report Cards. The Member agreed with College Counsel that the Guide to Provincial Report Cards, Grade 9 to 12 (Exhibit 26), which provides guidance to teachers on marking Report Cards, does not mention anything about adding personal comments to students Report Cards. The Member further acknowledged that he had no control over who sees a Report Card after it is released to a student. He also agreed with College Counsel that people might interpret written comments in different ways, and that an ambiguous comment could easily be misinterpreted. The Member conceded that this could cause a problem for students, who may find themselves in the position of having to explain a comment that they did not even write.
Also under cross-examination, the Member conceded that even if he intended the Comment as an inside joke, those not in the Member’s class would not get the joke. The Member further admitted that he has changed his position from his written statement, in which he had stated that he refused “to apologize for this comment as there is nothing to apologize for” (Exhibit 9). He reluctantly acknowledged that he could see how people might think that commenting about someone’s high heels has a sexual connotation, although he maintained that this was never his intention. The Member ultimately admitted that the Comment was unprofessional.
During his examination in chief, the Member testified that the principal had a very informal conversation with him in the hallway, where Mr. Stewart informed the Member that an investigative meeting was going to be held the following day to address the Comment issue. The principal told the Member that he had made a sexual comment on a student’s Report Card and that he should get union representation to attend the meeting with him. The Member testified that he was shocked at the accusation that he was a sexual predator and stayed up all night worrying about it. Given that he was in no state to teach the following day, he submitted a written statement to the principal and to the OSSTF representative and called in sick. The Member further testified that the note he wrote to the principal, which the principal perceived as threatening, was written in frustration and after not having slept all night.
The Member also testified that he did not apologize to Student #1 or her family for two reasons. First, the School administration never suggested that he write an apology. Second, the student and her family had moved between the time of the incident and the time that it was brought to the Member’s attention in September 2010. He claimed that he did not write an apology because he would not have known how to contact the student.
In cross-examination, the Member admitted that, although he did not have the student’s new contact information after she moved, he also made no effort to get her new coordinates or to contact her.
The Member also testified, during his examination in chief, that he had apologized to the principal for having tried to bully him, and that it was never his intention to bully him by stating, “Now it’s your job to make this go away” and “any disciplinary action will be grieved” (see Exhibit 9).
In cross-examination, College Counsel pursued this issue and the Member indicated that he could not see how the principal perceived this to be a threat. According to the Member, by saying “any disciplinary action will be grieved” he was simply reminding the principal about the grievance process and he was not threatening him. The Member agreed that the principal was an experienced teacher and administrator who would have been familiar with the grievance process, but he still maintained that his statement was merely meant as a reminder and not a threat. The Member acknowledged that he had apologized to the principal for bullying him, but reiterated that it was never his intention to bully the principal.
The “A” incidents
The Member also testified about the incidents involving teacher “A”. He explained that he had shared an office with “A” three years before the events in question, and that everything was fine. According to the Member, “A’s” body odour issue got worse over time, and it got to the point where the Member claims that he could not even work in the shared office anymore. The Member also testified that “A’s” coat “stank”, so he asked “A” if he could hang it in the staff room instead of in their shared office, which “A” refused.
The Member recalled being frustrated that “A” was in denial about his body odour, so he brought the issue to the principal’s attention. The first time that the Member addressed the issue with the principal, he claims that the principal did nothing about it. The second time that he complained to the principal, he claims that the principal went to the office to investigate and thought that the odour might have been coming from the couch or the garbage container. According to the Member, the principal still did not propose any solution to the problem.
The Member also described the incident in which he removed “A’s” coat from their shared office (without “A’s” permission) and left it in the custodian’s office. The Member testified that he had left a note for “A” telling him where his coat was and asking him not to bring it into the office anymore. Under cross-examination, the Member acknowledged that removing “A’s” coat from the shared office was unprofessional. He also agreed with College Counsel that this type of behaviour would not be tolerated if it had occurred between two students.
The Member claimed that “A” reacted to this incident by yelling at him, threatening him, and blocking his way out of the office. According to the Member, “A” bumped him with his stomach, which caused him to lose his balance and drop his books. Under cross-examination, the Member acknowledged that he did not document the book-dropping incident in any e-mail or other document.
The Member testified, during his examination in chief, that he then went back to the principal to inform him of the situation and to warn him that it was going to get violent if he did not intervene. While he was waiting for a resolution, the Member received an e-mail from “A” (Exhibit 6) accusing him of harassment. According to the Member, “A” had never spoken to him about the harassment issue in person, before sending the e-mail that escalated the matter to the Board. The Member testified that he was angry that “A” had escalated the matter, particularly given that he already had a disciplinary record with the Board as a result of the Comment incident. The Member acknowledged that his responding e-mail to “A” (Exhibit 7) went overboard, was somewhat “nasty”, and could have been far more tactful.
In cross-examination, the Member acknowledged that, while he had previously testified that he had responded to “A’s” e-mail shortly after reading it, he in fact responded approximately seven hours after having received it. The Member agreed with College Counsel that he had time to think over his response and that it was not a spur of the moment response. He further admitted that the e-mail was unprofessional and that his conduct in relation to “A” was unprofessional (see also Exhibit 24). Despite having treated “A” in an unprofessional manner, the Member conceded that he never apologized to him.
Finally, the Member testified that the situation between he and “A” was eventually resolved when the principal instructed that they move offices. The Member could not recall by what date he was first told to move out of the shared office, but he testified that there was no available desk in his new office at that time. The Member had been instructed to move upstairs to an office that had been used by Mr. Thibeau and Mr. Wood. According to the Member, the office that he was supposed to move into had three desks and a couple of tables, all of which were occupied by other teachers. The Member also testified that he had been in his old office for eight years and that he had lots of materials to move out, including a couch, a bulletin board, and a floor-to-ceiling bookshelf full of teaching materials. The Member explained that the only thing he left in the old office after the move-out date was a small bag of teaching materials that he used on a daily basis. The Member further testified that he completely disagreed with the principal’s evidence that the Member had disobeyed the directive to vacate the office.
In cross-examination, College Counsel put it to the Member that if there was any issue moving into his new office, he would have brought it up with Mr. Thibeau or Mr. Wood, who used to occupy that office. While the Member claims that he did address this issue with Mr. Wood, he acknowledged that there was no documentary evidence to this effect. There were no e-mails from the Member to either teacher asking them to move out, and there was also no e-mail from the Member to the principal that described any difficulties moving offices.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that this case centres around four main allegations that took place over a two year academic period. The first allegation is regarding the comment made by the Member on Student #1’s Ontario Provincial Report Card, which stated “Love the jeans with spike heels.” College Counsel submitted that this comment was inappropriate and did not follow the government policy which states, “for each course, record comments about the student’s achievement of the curriculum expectations and about the learning skills that he or she has demonstrated during the reporting period. Describe as specifically as possible significant strengths and areas for improvement and identify the steps that should be taken to improve the student’s learning” (Exhibit 26). College Counsel further stated that the comments section of a Report Card is not for a teacher to comment on a student’s physical appearance or attire. According to College Counsel, Report Cards are permanent public documents that are referenced by post-secondary institutions and potential employers to help assess a student’s academic abilities, work ethic and character.
College Counsel submitted that there are four remarkable aspects of this case with respect to the Comment incident:
The Member tried to defend himself by saying that it was a joke only intended for Student #1, and that his intentions were pure;
The Member stated that he had not received any prior complaints about personalized comments and admitted into evidence the Report Cards of seven students. College Counsel commented that the Member introduced evidence at this hearing without the students’ or administration’s consent.
Despite pleading not guilty, the Member reluctantly admitted that his conduct with respect to the Comment was unprofessional.
Despite the inappropriate comment, the Member never apologized to Student #1 or her mother and made no effort to do so.
College Counsel submitted that the Comment incident should give rise to a finding of professional misconduct for the reasons outlined above.
The second allegation refers to a handwritten note written by the Member and given to the principal, which stated, “Now it’s your job to make this go away” and “any disciplinary action will be grieved”. College Counsel submitted that when questioned, the principal indicated that he perceived the note as being threatening, inappropriate and unprofessional.
College Counsel submitted that the handwritten note making reference to the grievance process was unnecessary since the purpose of the investigative meeting that the Member was asked to attend was to discuss the Comment, and “no disciplinary action was on the table” at the time. College Counsel further stated that the Member apologized to the principal for having bullied him (Exhibit 10), in relation to the handwritten note.
The third allegation relates to the Member’s abusive behaviour towards “A”. The Member made several inappropriate comments to “A”, telling him that he stank and referencing his “fat gut”. College Counsel submitted that all, or any one of these comments referring to “A’s” odour or appearance, are inappropriate. College Counsel further submitted that the Member removed “A’s” coat (which contained his car keys and his house keys) from their shared office, without permission, and placed it in a custodial room where he stated that it “wouldn’t be near any humans”. College Counsel noted that when the principal visited the shared office, he did not detect any acrid odour. According to College Counsel, although the Member had pleaded not guilty, he nonetheless admitted that his comments and behaviour toward “A” were unprofessional.
The fourth allegation relates to the Member’s failure to comply with the principal’s directive to vacate the shared office and move to the new office designated by the principal in a timely manner. College Counsel submitted that it was only after a second deadline was imposed on the Member that he actually vacated the office. College Counsel further stated that there was no communication from the Member to the principal indicating why he was unable to immediately comply with the principal’s first directive. Counsel for the College submitted that, once again, the Member shifted responsibility for his actions away from him. According to College Counsel, the Member’s failure to comply with the principal’s directive demonstrated the Member’s disregard for administrative authority.
College Counsel further noted that all four allegations occurred within a five month timeframe. Moreover, College Counsel submitted that it is no defence to argue that some of the Member’s misconduct was directed towards another member (as opposed to a student) since the Member’s conduct was both unacceptable and unprofessional.
SUBMISSIONS OF MEMBER’S COUNSEL
With respect to the first allegation (the Comment incident), Counsel for the Member submitted that the Member admitted to making the Comment but did not intend for it to be sexual in nature. Member’s Counsel submitted that it was a common practice for the Member to personalize his grade [XXX] students’ Report Cards in order to give them something special to remember from their time together. Counsel for the Member further submitted that the Member was pressed for time when preparing his Report Cards. In addition, Member’s Counsel submitted that the Comment was the Member’s way of being supportive of the student’s choice of footwear and was not intended to be sexual in any way.
Member’s Counsel also submitted that the Member agreed that the Comment was inappropriate and showed poor judgment. He acknowledged that he had made a mistake and he was apologetic. Member’s Counsel further submitted that, at the time of the incident, the superintendent did not give the Member any direction regarding an apology and, in any event, the Member was unable to apologize at the time, since Student #1 had moved and the Member did not have her new contact information.
Counsel for the Member further submitted that, during her testimony, Student #1 acknowledged that the Member had never singled her out in class, had never said she was attractive, had never bought her gifts or cards, and had never made her feel uncomfortable.
With respect to the second allegation, Counsel for the Member submitted that the Member never intended for his handwritten note to the principal to be threatening. The Member testified that the note was a result of his anxiety and distress having just learned about the Comment allegations, and he indicated that he had not slept the entire night before submitting the handwritten note. Counsel for the Member submitted that, under cross-examination, the principal acknowledged that he did not feel physically threatened or intimidated by the Member.
With regard to the use of the word “bullying” in the Member’s apology to the principal during the September 13, 2010 meeting, Counsel for the Member submitted that the Member only used the word “bullying” in his apology because the administration kept suggesting to him that he had bullied the principal. He never admitted that it was his intention to bully the principal.
With respect to the third allegation, Counsel for the Member submitted that there was an interpersonal conflict between the Member and “A”, which the administration had not taken any steps to resolve despite the Member having raised his concerns over the smell in the shared office. The Member’s frustration over the inaction of the principal led him to remove the coat from the shared office and write a note to “A” telling him that the coat was locked in the custodial office.
With respect to the fourth allegation, Counsel for the Member submitted that the Member had not failed to comply with the directive of the principal to move out of the shared office, but rather that it was impossible for him to comply since there was no desk available for the Member in the new office designated by the principal. Member’s Counsel submitted that the Member was attempting to move, as evidenced by the fact that he had moved large items out of the shared office, he had brought items home, he had given his couch away, and he had vacated the space and began working out of the library and the staff room. Counsel for the Member further submitted that the only use the Member continued to make of his old office, following the principal’s directive to move, was that he locked a small bag in there while he waited for a desk to become available in his new office. According to Member’s Counsel, there was no misconduct or insubordination on the part of the Member in relation to the fourth allegation.
Counsel for the Member also referred the Committee to F.H. v. McDougall, 2008 SCC 53 (“McDougall”), Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, Ontario College of Teachers v. Fabel, 2010 LNONCTD 19, Southern Ontario Newspaper Guild v. Toronto Star, [1991] OLRB Rep. March 415, and the Labour Relations Act, S.O. 1995. Member’s Counsel asked the Committee to refer to these authorities when considering the standard of proof, the credibility of witnesses, the test that must be met to make a finding of professional misconduct and insubordination, and what constitutes unfair labour practices.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel first replied to the submission of Member’s Counsel that the Member had intended for his personalized Report Card comments to provide his students with a fond memory of their time together. According to College Counsel, the Committee should not focus on the Member’s intention, but rather on his lack of acknowledgement of the impact that his Comment had on Student #1. Even four years after the incident, during these proceedings, Student #1 still appeared visibly upset over the Comment.
Second, College Counsel replied to Counsel for the Member’s submission that the Member was rushed when writing his Report Cards which led to his poor decision to include the Comment on Student #1’s Report Card. According to College Counsel, the Member was an experienced teacher and being rushed to write Report Cards is not an acceptable justification for his actions. College Counsel urged the Committee to consider that the Member admitted, under oath, that the Comment was unprofessional.
Third, College Counsel replied to the Member’s justification for not having apologized to Student #1 or her family, following the Comment incident. According to College Counsel, the fact that the Student moved and that the Member did not have her new contact information was no excuse given that the Member made no effort whatsoever to locate her and to apologize. Moreover, the fact that the School administration did not direct the Member to apologize is also no excuse. The Member is an adult who is responsible for his actions. He should have taken it upon himself to apologize.
College Counsel further noted that the Member has also not apologized to “A”, who remains a colleague of the Member’s at the School. According to College Counsel, the Member simply “doesn’t apologize” because, in the Member’s opinion, “they own the problem” and he is not responsible for the problems of others.
DECISION
Onus and Standard of Proof
The College bears the onus of proving the allegations in accordance with the standard of proof set out in McDougall, which is proof on a balance of probabilities. The allegations must be supported by clear, cogent and convincing evidence in order for the Committee to make a finding of professional misconduct.
Decision
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel and the Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18), and 1(19).
The Committee does not find that the facts support a finding of professional misconduct with respect to subsections 1(7) of Ontario Regulation 437/97.
REASONS FOR DECISION
The Committee found the Member guilty of professional misconduct pursuant to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18), and 1(19).
The Committee found no evidence, however, to support a finding of professional misconduct under Ontario Regulation 437/97, subsections 1(7), which addresses the verbal abuse of a student. The Comment was made to Student #1 in writing on her provincial Report Card. Student #1 confirmed that the Member had never singled her out in class, had never asked her out, and had never said that she was attractive. Student #1 also confirmed that she had never complained to the School administration, or to anyone, that the Member had made her feel uncomfortable or had directed unwanted comments or attention towards her, aside from the Comment on her Report Card.
In arriving at its decision that the Member is guilty of professional misconduct, the Committee carefully considered the four primary allegations in this case. The Committee first determined whether the facts giving rise to each allegation were proven, on a balance of probabilities, and if so, whether the Member’s conduct amounted to professional misconduct.
The Comment incident
There is no doubt that the Member wrote the Comment (“Love the jeans with spike heels”) on Student #1’s report card. The only question for the Committee to consider was whether the Comment amounted to professional misconduct. The Committee finds that the Comment was completely inappropriate and gives rise to a finding of professional misconduct.
The Ontario Ministry of Education has set standards with respect to the marking of Report Cards, and even the Member agreed that the Guide to Provincial Report Cards, Grade 9 to 12 never mentions anything about adding personal comments to students’ Report Cards. Report Card comments are supposed to focus on students’ strengths, needs, and next steps in their academic development. They are not a forum for inside jokes and certainly not ones that can be perceived as sexual or sexist in nature.
The Committee was troubled by the fact that, through his Comment, the Member left Student #1 in the unenviable position of potentially having to explain the Comment to others who might view her Report Card. Student #1’s Report Card is an official government document that the Student might have to rely on for college or university applications and for future employment. It is unfair to put students in the position where they may be penalized based on a comment that they did not even write. The Committee finds that the Comment could easily be perceived to have a sexual connotation, and this could unjustly call into question Student #1’s character. Comments of this nature have no place inside or outside of the classroom.
The Committee was also concerned that the Member produced seven examples of Report Card comments from students who had not consented to the release of their personal information. These Report Cards contained sufficient detail to identify the students in question and should not have been put before the Committee, in an open hearing, in their un-redacted state. In addition, the Report Cards (Exhibits 17 to 23) signalled to the Committee that the Member had written inappropriate comments on other students’ Report Cards as well. The Member displayed a pattern of singling out students by commenting inappropriately on their appearance or personal attributes, and he did not adhere to the Ministry of Education guidelines for writing Report Cards.
The Committee further notes that the Member’s lack of accountability and his refusal to apologize to Student #1 or her family is disgraceful. The Member’s excuse that he could not have apologized at the time of the incident because the Student had moved and because he was not specifically directed by School administration to apologize is unacceptable. The Member could have made an effort to track down the Student, which he did not. The Member could have also taken responsibility for his actions, without being told by administration to apologize; he did not. The Committee finds that the Member’s refusal to apologize, or to even attempt to apologize, demonstrates a serious lack of accountability on the part of the Member.
The Committee finds that the Member exercised poor judgment when he wrote the Comment on Student #1’s Report Card; even the Member admitted that the Comment was unprofessional. The Committee therefore has no difficulty concluding that the Comment was inappropriate, unprofessional and that it must give rise to a finding of professional misconduct.
The “threatening” the principal incident
The Committee finds that the Member’s handwritten note to the principal, following the principal’s request that the Member attend an investigative meeting to address the Comment incident, was threatening and unprofessional. In his note to the principal, the Member wrote: “Now it’s your job to make this go away” and “any disciplinary action will be grieved” (see Exhibit 9). The Committee finds it reasonable that the principal would have felt threatened by this note, even if the principal did not feel that he was being physically threatened by the Member.
The Committee does not accept the Member’s evidence that by writing, “any disciplinary action will be grieved” he was simply reminding the principal about the grievance process. In cross-examination, the Member acknowledged that the principal was an experienced educator and administrator and that he surely would have been aware of the grievance process. The Committee cannot understand why the Member would have felt the need to remind the principal
of the grievance process if he knew that the principal was well aware of the process.
Bearing in mind the context in which this note was written, the Committee cannot accept that this note was a friendly reminder and not a threat. The Member acknowledged that he was anxious and distressed when he was told that a complaint had been brought against him regarding the sexual nature of the Comment. He did not sleep the entire night before he submitted the note and his statement to the School administration. He was clearly upset. It is more likely that the Member would have used this note as an outlet for his stress, given the circumstances, than as an opportunity to provide the principal with a friendly reminder about the grievance process (with which the principal was already very familiar). Even the Member acknowledged that he had apologized for trying to bully the principal, although he noted that it was not his intention to bully the principal.
Having considered the handwritten note in its proper context and with regard to the events that led the Member to write the note, the Committee finds that the Member’s note was threatening. The Committee also accepted the testimony of the principal that he felt threatened by the note. The Member chose how to respond to the principal’s request that he attend an investigative meeting, and his choice demonstrated, once again, his failure to take responsibility for his actions and his lack of professional judgment. The Committee therefore finds that the Member’s conduct in this regard was unprofessional and gives rise to a finding of professional misconduct.
The “A” incidents
The Committee finds that the Member engaged in abusive behaviour towards his colleague, “A”, and acted in a disrespectful and unprofessional manner towards his colleague. The Committee further finds that this behaviour gives rise to a finding of professional misconduct.
The Committee carefully considered the evidence with regard to the interpersonal conflict between the Member and his colleague, “A”. The Member admitted that he removed “A’s” coat from their shared office, without his permission, and put it in the custodian’s office. The coat contained “A’s” car keys and house keys and the custodian’s office was not always locked. The Member admitted that removing “A’s” coat from their office without his permission was unprofessional. The Committee agrees.
The Committee also reviewed the e-mail exchanges between the Member and “A” and finds that the Member’s communication to his colleague was unprofessional. “A” sent the Member an initial e-mail (Exhibit 6), in which he accused the Member of harassment and escalated the issue to the Board. The Member admitted that he was angry that “A” had escalated this matter, particularly given that the Member already had a disciplinary record with the Board as a result of the Comment incident. The Member responded to “A” with an e-mail of his own (Exhibit 7), which he admitted was “nasty”, went overboard, and could have been more tactful. The Committee agrees. The Member made several inappropriate comments to “A”, which included disparaging comments about his body odour and his “fat gut”. The Member admitted, in cross-examination, that both his e-mail to “A” and his conduct in relation to “A” were unprofessional.
The Committee notes that the Member claimed that he was acting out of frustration because the School administration did nothing to adequately address the Member’s concerns that his office smelled as a result of “A”. Even if it were the case that the principal had not adequately addressed the situation, the Committee still would have found that the Member’s conduct towards “A” was unprofessional and gave rise to a finding of professional misconduct.
Once again, the Member has demonstrated his lack of accountability and his tendency to blame
others for his misconduct. The Member chose to move “A’s” coat out of their office without permission and he chose to write a “nasty” e-mail to “A” and to make various disparaging remarks about his colleague’s odour and appearance. The Member has had ample opportunity to apologize for his behaviour and to take responsibility for his actions, but he has decided to place the blame on the School administration instead of taking ownership of his conduct.
The Member’s conduct humiliated his colleague, it was unprofessional and it was unbecoming a member of the teaching profession. It is unacceptable for members of the teaching profession to treat other members with the type of disrespect and disregard that the Member displayed towards “A”. The Committee therefore finds that the Member’s conduct towards “A” gives rise to a finding of professional misconduct.
The moving offices incident
The Committee finds that there is insufficient evidence to prove that the Member failed to comply with a directive from the principal of the School to move his belongings from his shared office to the office that he was told to move into. The Committee notes that there were some factual discrepancies between the College’s and the Member’s version of events in this regard, but that there was insufficient evidence to prove the College’s version of events on a balance of probabilities.
According to the College, the Member failed to comply with the principal’s first directive to move offices and it was only after a second deadline was imposed that the Member actually vacated his old, shared office. College Counsel noted that the principal testified that there was space in the new office for the Member to move into.
Member’s Counsel, on the other hand, submitted that it was impossible for the Member to comply
with the principal’s initial direction because the office that he was told to move into was still occupied. According to Member’s Counsel, the Member did not fail to comply with the principal’s directive because he did everything that he could to move, but was prevented from completing his move until the office that he was told to move into was vacated.
The Committee finds that the Member’s version of events was more likely than that of the College. While the parties disagree about whether or not there was space in the new office for the Member to move into, the Committee heard from two of the teachers who were occupying the office that the Member had been told to move into. Both Mr. Thibeau and Mr. Wood testified that all of the desks in their office were occupied and that they did not move out when they were initially asked to, because they did not realize that there was any urgency for them to move. The testimony of these two witnesses, who have nothing at stake in this case, is credible and corroborates the Member’s version of events.
The Committee also heard testimony from the Member that he had done his best to move out of the shared office as quickly as possible. The Member testified that he had eight years’ worth of material to move, which included a couch, a floor-to-ceiling bookshelf, a bulletin board, and a significant amount of teaching materials. The Committee accepts that it would take some time to move offices to another floor, particularly given the volume of material that had to be moved and the fact that the office being moved into had not been vacated. The Committee is not convinced, based on the evidence before it, that the Member deliberately disobeyed the principal’s directive; rather, the Committee finds that the Member had nowhere to move and did his best to vacate the shared office given the circumstances.
The Committee further notes that the principal acknowledged, in cross-examination, that he
never saw the Member working from his old, shared office after he was told to move out. The principal suggested that, just because he did not see the Member working from his old office does not mean that he was not still occupying it. The Committee, however, finds that the principal’s speculation in this regard is not sufficiently supported by the evidence.
Finally, the Committee recognizes that there was no correspondence from the Member to either the principal or to Mr. Thibeau or Mr. Wood that indicated that he was having trouble moving into his new office. While the Committee agrees with College Counsel that the Member ought to have signalled to the principal that he was having trouble with his move, the Committee cannot make the leap that Member’s failure to alert the principal of his difficulties with the move must lead to the conclusion that the Member failed to comply with the directive.
Moving and communicating about moving are two separate issues. The evidence suggests that it is more likely than not that the Member moved as much as he could and was then held up by the fact that the office into which he was told to move had not been vacated. The fact that the Member did not communicate this to the principal does not prove that he failed to comply with the principal’s directive. The Committee is satisfied that the Member made a reasonable effort to vacate his shared office in a timely manner.
Accordingly, the Committee does not find that there is a sufficient evidentiary basis to prove that the Member failed to comply with the principal’s directive to move offices. The Committee therefore makes no finding of professional misconduct on the basis of this final allegation.
Conclusions
The Committee finds that the Member is guilty of professional misconduct. The Member’s Comment on Student #1’s Report Card was unprofessional, his written note and statement to the principal was threatening and unprofessional, and his conduct and communications towards his colleague, “A”, were disrespectful and unprofessional. Although the Committee did not find that the Member failed to comply with the principal’s directive with regard to moving offices, the Committee is satisfied that the facts in this case still support a finding of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18), and 1(19). The Member’s conduct towards both a student and his colleagues was unprofessional, and the Member displayed a complete lack of accountability for his conduct.
PENALTY
The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.
Date: February 20, 2015
Robert Gagné
Chair, Discipline Panel
______________________________ Christine Bellini, OCT
Member, Discipline Panel
______________________________ Irene Dembek, OCT
Member, Discipline Panel