Ontario College of Teachers v. Canning, 2015 ONOCT 9

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Canning, 2015 ONOCT 9

Date: 2015-02-26

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

Michael Wade Canning, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair Wes Vickers, OCT Hanno Weinberger, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Beverley Hodson, Law Clerk

– and –

MICHAEL WADE CANNING (CERTIFICATE #196582) Jerry Raso, Ontario English Catholic Teachers’ Association, for Michael Wade Canning

Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: February 19, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 19, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated March 4, 2014 was served on Michael Wade Canning (the “Member”), requesting his presence on April 1, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 19, 2015.

The Member was in attendance for the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Michael Wade Canning is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teacher’s 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);

(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

At the hearing on February 19, 2015, Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing be withdrawn. The Committee accepted the request and the allegation was subsequently withdrawn.

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 as follows:

1. Michael Wade Canning 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.

Background Information:

2. At all material times, the Member was employed by the Durham Catholic District School Board (the “Board”) as a Transportation Technology teacher at All Saints Catholic Secondary School (the “School”). The Member obtained his Ontario Teacher’s Certificate in 1995. He has Basic Qualifications in Technological Studies, Transportation – Automotive, Basic and Advanced and Technological Studies, Manufacturing – Manufacturing Technology, Basic. He has Additional Qualifications in Religious Education, Parts 1, 2 and Specialist; Design and Technology, Part 1 and Honour Technology Studies, Specialist. He has taught for 18 years with the Board.

3. In those 18 years of teaching, prior to this complaint, the Member had never faced an allegation of inappropriate conduct.

4. As a Transportation Technology teacher, the Member was responsible for teaching students about automobiles – how they worked and how to repair them. This was done through having cars in the auto shop which the students worked on (student experiential learning). People would donate their cars to the school and receive a receipt from the school with the estimated value of the car. Many staff members had their cars worked on by the students.

The Conduct:

5. In or around the end of March 2011, the Vice Principal at another school of the Board (the “Donor”) who was a former colleague of the Member’s, donated a 1998 Toyota Camry (the “Camry”) to the School for the purpose of student experiential learning in the Transportation Technology program. The Donor requested a receipt for income tax purposes.

6. On or around April 1, 2011, the Member provided the Donor with a letter confirming receipt of the vehicle, and stating the approximate value of the vehicle was $500.00. Attached to Exhibit 2 at Tab “B” is a copy of the Member’s April 2011 letter to the Donor.

7. Despite confirming receipt of the vehicle, the Member did not register a transfer of ownership of the vehicle to the Board with the Ministry of Transportation. Rather, when he received the car in April 2011, the Member followed the procedure he had followed in the past:

• he received the car and signed registration from the owner;
• he issued her a receipt for $500.00;
• he kept the car in the school to be worked on by students;
• he kept the signed registration to be turned over to the automobile wrecker company when the car was to be scrapped.

8. The car stayed in the school for over one year and was worked on by the students. It never left the school during that one year period.

9. Just over one year later, in April 2012, the Member learned that the car used by his stepson, a Ford Taurus (the “Taurus”), was not working properly and could not be driven. He had it towed to the School with the intention of repairing it.

10. After examining the Taurus, he realized that it needed major repairs.

11. The Member decided to leave the Taurus at the School to repair it, and to replace it with the Camry in question for his stepson’s use. His intention was to return the Camry to the School after he completed the repairs to the Taurus.

12. On April 26, 2012, the Member sent an email to the Donor informing her they had been fixing up the Camry and he wanted to start driving it. He asked the Donor if she minded if he put the Camry into his name, and suggested that he could say he paid $500.00 for it. Attached to Exhibit 2 at Tab “C” is a copy of the Member’s email to the Donor dated April 26, 2012.

13. The Donor responded to the Member’s request as follows the following morning:

I’m not comfortable with you putting the car in your name. It was donated to the school for student learning and there was no legal transaction. This does not sit well with me. What are [the Principal’s] thoughts on the matter.

Attached to Exhibit 2 at Tab “D” is a copy of the Donor’s email to the Member dated Friday, April 27, 2012, at 10:47 a.m.

14. Prior to reading the Donor’s response to his request, on Friday April 27, 2012, the Member transferred ownership of the Camry into the name of his sister-in-law. Attached to Exhibit 2 at Tab “E” is a copy of the Ministry of Transportation registration information for the vehicle.

15. In the early evening hours of Friday, April 27, 2012, after transferring ownership of the vehicle into his sister-in-law’s name, the Member responded to the Donor’s email:

Ok…can I just pay you for the car and we just do a transfer?? I don’t want to cause you grief and I have done this before with no problems…

Attached to Exhibit 2 at Tab “F” is a copy of the Member’s email to the Donor dated April 27, 2012 at 6:24 p.m.

16. The Donor responded to the Member’s renewed request on Monday April 30, 2012:

The receipt you provided from the school when I donated the Camry has been used for my taxes. It is inappropriate to be paid now for a car I donated to the school, and that was worked on by students using school time and resources. I also informed the DMV office of the donation of the car to [the School]. As I see it, the car belongs to [the School] and should remain so. I do not condone putting the vehicle in your name. Please reply and verify that the car will remain at [the School].

Attached to Exhibit 2 at Tab “G” is a copy of the Donor’s email to the Member dated April 30, 2012, at 9:23 a.m.

17. The Member did not inform the Donor that he had transferred ownership of the vehicle to a family member as he planned to return the car to the School once he completed repairs to the Taurus. He took the Camry to his home on April 30, 2012. The Member replied to the Donor’s latest email at 5:30 p.m. that evening:

Ok.. sorry to have bugged you.. no problem.

Attached to Exhibit 2 at Tab “H” is a copy of the Member’s email to the Donor dated April 30, 2012, at 5:30 p.m.

18. The Donor recalled that she had not taken her plates when she donated the Camry, and became concerned about liability. She drove by the Member’s residence during the evening of May 1, 2012. The Camry was in the Member’s driveway, with different licence plates.

19. On or about May 2, 2012, the Member returned the Camry to the School of his own volition. He was not aware that the Donor had driven by his home. The vehicle was never used by the Member or anyone else in his family.

20. On May 3, 2012, the Donor contacted the School and advised the Principal about her concerns regarding the Member’s requests and liability issues.

21. On May 4, 2012, the Principal observed the Camry in the rear parking lot at the School, with the Donor’s licence plates. The Principal removed the plates for the Donor. The Camry remained at the School thereafter. The Principal informed the Member of the allegations and assigned him to home duties. Attached to Exhibit 2 at Tab “I” is a copy of the Principal’s letter to the Member.

22. As a result of this incident, the Member was charged with defrauding the School of a motor vehicle of a value of not exceeding five thousand dollars, contrary to Section 390(1)(b) of the Criminal Code of Canada, as well as with making a false statement and failing to apply for a permit upon becoming an owner of a vehicle, contrary to sections 9(1) and 11(2) of the Highway Traffic Act. On or about August 23, 2012, the Member pled guilty to the offence of failing to apply for a permit within six days of being an owner of a vehicle, contrary to the Highway Traffic Act, and the remaining charges of fraud and making a false statement were withdrawn at the request of the Crown.

GUILTY PLEA

23. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 22 above (the “Admitted Facts”).

24. 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).

25. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

26. 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 evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, 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(18 – unprofessional), and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 22 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 finds, that the Admitted Facts constitute professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional), and 1(19).

The Committee accepts the Member’s guilty plea, and finds that the facts contained in the Agreed Statement of Facts and Guilty Plea amount to professional misconduct as pleaded to by the Member.

The Committee finds that the Member failed to conduct himself in accordance with his professional and ethical obligations as a member of the teaching profession when he not only failed to transfer the ownership of the Camry into the Board’s name but subsequently transferred the ownership into the name of his sister-in-law.

Although the Member did make repeated requests in writing to the Donor asking for permission to transfer the ownership of the car into his name, he omitted the fact that the transfer had already taken place even though the Donor made it clear that she would not consent to the transfer of ownership. Despite the Donors express concerns about the transfer, the Member took the vehicle home for two days.

The Committee finds that the Member’s actions were unprofessional and constitute conduct unbecoming a member. The Member’s conduct was deceptive, unethical and lacked the professional integrity expected of all teachers. The Member lied to the Donor about the transfer of ownership and he removed the vehicle from school property without the consent of the School or the Donor. Regardless of his intent to return the Camry to the School once the Taurus was fixed, the Member’s actions were unacceptable. As a result of his conduct, the Member was criminally charged and ultimately pled guilty to the offence of failing to apply for a permit within six days of being an owner of a vehicle, contrary to the Highway Traffic Act.

In light of the Member’s behaviour, 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(18 – unprofessional), and 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, the fact of such terms, conditions, or limitations 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 three months of the date of this Order, a course of instruction pre-approved by the Registrar regarding 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 Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. direct that there be publication of the findings and Order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS RE: PUBLICATION

Submissions of College Counsel

Counsel for the College submitted that the Joint Submission on Penalty, which asks the Committee to direct that the Member receive a reprimand, complete a course on professional ethics, and that there be publication in the official publication of the College, satisfies the principles of general and specific deterrence, transparency and accountability.

Counsel for the College submitted that publication with the name of the Member informs both the profession and the public that the College will not shield the names of members who have been found guilty of professional misconduct. Publication with name also addresses the accountability portion of the penalty and informs the public that the College has acted in the public interest.

Counsel for the College further submitted that publication with the Member’s name serves as a specific deterrent to the Member and a general deterrent to the profession. As a general deterrent, publication with name informs the public and the profession that the Member has been sanctioned by the Discipline Committee of the College.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the Member’s name is not warranted, necessary or required in this case. All purposes of the penalty are still achieved without publication with the Member’s name.

Counsel for the Member submitted that the Member is a “first time offender” and has been teaching without incident for 18 years. Counsel for the Member also reminded the Committee that the students of the Transportation Technology Program were not denied an opportunity to work on repairing a vehicle in class as the Member replaced the Donor car with the Taurus.

Counsel for the Member further submitted that publication with name is not warranted as the conduct was really only an error in judgment and is on the lower end of the professional misconduct scale.

Counsel for the Member further submitted that publication, in summary alone, speaks to the transparency and accountability of the discipline process. He further stated that the Committee ratified the proposed Agreed Statement of Facts and Joint Submission on Penalty in a public forum thereby addressing the principles of transparency and accountability.

REPLY

In reply, Counsel for College stated that the Member’s behaviour was more than just an error in judgment. The Donor’s car was Board property which the Member drove home and kept for two days. Further, the Member had the ownership of the Donor car transferred into a family member’s name.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register.

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

(a) the Member shall enrol in and successfully complete at his own expense within three months of the date of this Order, a course of instruction pre-approved by the Registrar regarding 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 Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty, documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Orders of the Discipline Committee; and

(ii) the Member has successfully completed the course.

3. There shall be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The Committee determined that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is appropriate under the circumstances. Therefore, the Committee accepted the proposed penalty presented by the parties.

The Committee finds that the Member breached the ethical standards expected of the profession and engaged in conduct unbecoming a member. Therefore, the Committee agrees that the reprimand is appropriate in the circumstances. The reprimand allows the profession to express its concerns to the Member about his misconduct and serves as a specific deterrent.

The course of instruction in ethics will serve to clarify for the Member why his conduct was unprofessional. It will further serve to rehabilitate the Member and allow him to understand the nature of his misconduct.

When deciding on whether or not to publish with name, the Committee was concerned by the fact that the Member continued to mislead the Donor throughout email conversations even after he had transferred ownership of the Camry to the name of a family member. The Committee therefore finds that publication with name, in the official publication of the College is warranted.

Publication with name provides a specific deterrent to the Member and a general deterrent to the profession. Publication with name informs the profession and the public of the nature of the Member’s misconduct and the consequences of such behaviour. Publication also serves the public interest by reassuring and informing the public that the profession 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: February 26, 2015

Robert Gagné, Chair Chair, Discipline Panel

Wes Vickers, OCT Member, Discipline Panel

Hanno Weinberger, OCT Member, Discipline Panel