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
Thomas Arthur Worthy, OCT, a member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov, Chair
Pauline Smart
Ravi Vethamany, OCT
BETWEEN: ) David Leonard,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
– and – )
THOMAS ARTHUR WORTHY ) Heather Alden
(CERTIFICATE #275381) ) and Kirsty Niglas-Collins
) Student-at-Law,
) Ontario Secondary School ) Teachers’ Federation,
) for Thomas Arthur Worthy
) Rebecca Durcan,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: October 29, 2015
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 29, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 12, 2013 (Exhibit 1) was served on Thomas Arthur Worthy (the “Member”), requesting his presence on April 9, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 29, 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 supervise adequately a student or students who are under the professional supervision of the Member, contrary to Ontario Regulation 437/97, subsection 1(11);
(c) 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);
(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
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:
At all material times, Thomas Arthur Worthy was 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.
At all material times, the Member was employed by the Limestone District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Kingston, Ontario.
At all material times, Student 1 was a female student and Student 2 was a male student of the School. In November 2010 these students were [XXX] years old.
In April 2010, Student 1 and Student 2 won a research competition. The Member was the teacher who assisted them with their entry. The students were invited to present their results at a conference in [XXX], where they would also receive an award.
The Board arranged for the Member and an Educational Assistant to travel, as chaperones, with Student 1 and Student 2, to the conference in [XXX]. The Educational Assistant had no prior involvement in the project, but was asked to travel as a chaperone because there was a female student involved. The conference was from November 21 to 25, 2010.
In addition to attending the conference, it was agreed that the group would spend the weekend before the conference in [XXX] and the weekend after the conference would be spent in [XXX]. The total duration of the trip to [XXX] was from November 18 to 29, 2010.
The conference organizers arranged the accommodations for the group during the conference [November 21 to 25, 2010]. Separate hotel rooms were provided for each of the students and each of the chaperones.
The Member was responsible for arranging the accommodations for the weekends before and after the conference. The Member originally understood that each person would have their own room on the weekends. However, only two hotel rooms were booked for the weekends before and after the conference. The Member was aware at least two or three weeks in advance of the trip that there were only two hotel rooms booked. The hotel register submitted to the Board indicated that the male student would be sharing a room with the Member, and the female student would be sharing a room with the Educational Assistant.
However, the Member decided instead that Student 1 and Student 2 would share a room instead of assigning the rooms by gender. The Member’s decision resulted in Student 1 and Student 2 sharing a hotel room for a total of six nights.
The Member made the decision for Student 1 and Student 2 to share a hotel room together prior to leaving for the trip and did not communicate this to the principal of the School or discuss alternatives with the principal or any other Board official. Neither the parents of the students nor the Board agreed to have the two students share a room.
The Member arranged in advance for an adult female friend of his to meet the group in Amsterdam. This friend joined the group for one day and one overnight stay. The adult female friend shared a room with the Member and the Educational Assistant. The Member did not inform the Board in advance that an adult unknown to the Board or the families would be present, nor did he obtain consent for this arrangement.
During the trip, the Member permitted Student 1 and Student 2 to drink alcohol. Furthermore, the Member also consumed alcohol in the presence of Student 1 and Student 2. This is contrary to Board policy.
During the trip and upon returning to Canada, the Member told Student 1 and Student 2 several times, “What happens in [XXX] stays in [XXX].
Following the trip, the Educational Assistant reported her concerns about the Member’s conduct to the Board. The Board investigated the allegations.
The Member was given a five working day unpaid suspension by the Board from April 12 to 18, 2011 inclusive. Attached to Exhibit 2 at Tab “B” is a copy of a letter from the Superintendent of Human Resources of the Board dated April 26, 2011.
In or about August 2009, the Member was diagnosed with Lyme Disease. He experienced muscle pain, headaches, and mild left facial palsy. He received treatment and by September 2009, his headaches and facial palsy were gone. He continues to experience muscle and joint symptoms.
If the Member were to testify, he would state that he believes that his Lyme Disease impaired his judgment and contributed to the misconduct described in this document.
According to the Member’s family physician, it is possible that the Member’s judgment could have been affected by Lyme Disease. Attached to Exhibit 2 at Tab “C” is a copy of a letter from the Member’s family physician dated November 6, 2012.
None of the Member’s treating physicians documented that the Member was experiencing any issues with this judgment or any other central nervous system or psychiatric symptoms in 2009 or 2010. The Member did not advise the Board of any concerns about his medical condition or his judgment prior to the trip or during the course of the Board’s investigation into the Member’s conduct on the trip.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 19 above (the “Admitted Facts”).
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(11), 1(15), 1(18), and 1(19).
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 him and Counsel for the College with respect to the penalty proposed 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.
- 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(11), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 19 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(11), 1(15), 1(18) and 1(19).
Paragraphs 8, 9, 10, 11, 12 and 13 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 8, 9, 10 and 12 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to supervise adequately a student or students who were under the professional supervision of the Member, contrary to Ontario Regulation 437/97, subsection 1(11).
Paragraphs 8, 9, 10, 11, 12 and 13 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 8, 9, 10, 11, 12 and 13 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 8, 9, 10, 11, 12 and 13 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:
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”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of five working days, with such suspension having been served from April 12, 2011 to April 18, 2011. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately.
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) within three months of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate supervision of students and professional boundaries, subject to the following conditions:
(i) the Member will provide to the course provider approved by the Registrar, 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;
(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider which:
(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.
- direct that there be publication of the finding and order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed to whether or not the Member’s name should be included and submissions will be made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
Counsel for the College submitted that publication with name is necessary notwithstanding that the Joint Submission on Penalty covered all of the sentencing principles, because it fosters transparency and confidence in the discipline process, and because the embarrassment can be an effective specific and general deterrent.
Counsel for the College referred the Committee to one analogous case, in which publication with name was ordered: Ontario College of Teachers v. Powers, 2014 LNONCTD 111.
Submissions of the Member’s Representative
Counsel for the Member was present, in addition to Ms. Niglas-Collins, a student-at-law (the “Member’s Representative”), who made submissions on behalf of the Member. Students-at-law have a right of appearance at the College.
The Member’s Representative highlighted the applicable mitigating factors in this case: the Member’s guilty plea and remorse; his medical condition which may have affected his decision making; his 28 year teaching career in good standing; and that he has taught in good standing and without incident for five years since his misconduct.
The Member’s Representative submitted that the Member’s name should not be published in order to protect his personal health information.
Member’s Counsel referred the Committee to four cases in which publication with name was not ordered: Ontario College of Teachers v. Brooks, 2015 LNONCTD 46; Ontario College of Teachers v. Gagnon, 2009 LNONCTD 31; Ontario College of Teachers v. Beauchemin, 2008 LNONCTD 6; and, Ontario College of Teachers v. Klatt, 2006 LNONCTD 15.
Reply Submissions of College Counsel
College Counsel replied that the Committee could order publication with the name of the Member as there are alternate ways of maintaining protection of the Member’s personal health information within the Committee’s written decision.
ADDITIONAL SUBMISSIONS ON PUBLICATION
After the College’s reply submissions, the Committee sought further clarification from the parties with respect to the effect that Justice LeSage’s May 31, 2012 Review of the Ontario College of Teachers Intake, Investigation and Discipline Procedures and Outcomes, and the Dispute Resolution Program (the “LeSage Report”) has had on the issue of publication. College Counsel submitted that the current trend is to publish members’ names to maintain transparency and confidence in discipline proceedings.
Both parties agreed that the Committee retains statutory jurisdiction to not publish members’ names notwithstanding Justice LeSage’s recommendations, which have not yet been adopted into law.
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, without the name of the Member.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.
The Committee finds that the Member’s misconduct warrants a reprimand. The reprimand will serve as a specific deterrent and will allow the College to address its concerns with the Member. Additionally, recording the fact of the reprimand on the Register serves as a general deterrent as it informs the teaching profession that the College may speak directly to its members regarding professional misconduct.
Given the Member’s misconduct, the Committee finds that a five working day suspension is reasonable and appropriate. The Committee has directed the Registrar to suspend the Member retroactively, to coincide with the Board’s suspension which the Member has already served. The recording of the suspension on the Register will serve as a specific deterrent to the Member as it will not be removed from the Register and will remind the Member not to engage in any further unprofessional conduct. It also serves as a general deterrent to other members of the teaching profession as it will inform them that such behaviour will not be condoned by the College.
The Committee finds that the courses of instruction regarding appropriate supervision of students and professional boundaries will assist in the rehabilitation of the Member. This remedial coursework will remind the Member of his obligations as a teacher and it will help him to make better decisions with respect to the supervision of students and in his interactions with students.
The Committee has determined that there shall be publication of its finding and order in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession, without the name of the Member. The Committee received College Counsel’s submissions that the Joint Submission on Penalty addressed the sentencing principles of specific deterrence, general deterrence, rehabilitation and the protection of the public interest. The Committee also acknowledges College Counsel’s submission that the Member’s name could have been published while still protecting the personal health information of the Member.
The Committee, however, finds that publication with the Member’s name in Professionally Speaking/Pour parler profession, in this particular case, would go beyond the sentencing principles and would be unduly punitive. When determining the issue of publication, the Committee weighed the seriousness of the misconduct, the mitigating and aggravating factors, and the other sanctions that were imposed on the Member, including the public nature of those sanctions. The Committee notes the mitigating factors, agreed to by College Counsel and the Member’s Representative, including the Member’s lengthy teaching career in good standing prior to the events in question and his subsequent return to teaching without further incident. The Committee recognizes that the Member has already received serious and public discipline from his Board.
The Committee concludes that publication with name is not necessary in this case because the public interest is adequately protected by the other sanctions, the Member’s name is available to the public on the public register, and publishing the name of the Member in Professionally Speaking/Pour parler profession would be unduly punitive.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: November 5, 2015
Marie-Claude Yaacov
Chair, Discipline Panel
______________________________ Pauline Smart
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel