DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Shaikh 2016 ONOCT 101

Date: 2016-12-20

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

Zubair Ahmed Shaikh, OCT, a member of the Ontario College of Teachers.

PANEL: Marie-Claude Yaacov, Chair Sara Nouini, OCT Ravi Vethamany, OCT

BETWEEN: ) Eli Mogil, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker, ) Law Clerk

-and- )

ZUBAIR AHMED SHAIKH ) Heather Alden (CERTIFICATE # 429630) ) and Kirsty Niglas-Collins, ) Student-at-Law, ) Ontario Secondary School ) Teachers’ Federation, ) for Zubair Ahmed Shaikh

) Erica Richler, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) Renée Kopp, ) Jones Litigation Counsel LLP, ) Independent Legal Counsel

) Heard: January 28 and 29, 2016, February 11 ) and 12, 2016, and March 29, 2016

DECISION ON FINDING AND REASONS FOR DECISION

TABLE OF CONTENTS

OVERVIEW... 4

THE ALLEGATIONS. 5

WITHDRAWAL OF ALLEGATIONS. 7

MEMBER’S PLEA.. 7

EVIDENCE.. 7

Uncontested Facts. 7

College Witnesses. 11

Student 2. 11

Principal Grdovic. 12

Member’s Witnesses. 12

The Member 12

Ms. Fletcher 13

Ms. Story. 14

Ms. Pokorski 14

Ms. Munro. 15

Mr. Warda. 15

LEGAL ISSUES. 16

Production of third party documents. 16

Browne v. Dunn rule. 17

SUBMISSIONS OF COLLEGE COUNSEL.. 18

SUBMISSIONS OF MEMBER’S COUNSEL.. 21

REPLY SUBMISSIONS OF COLLEGE COUNSEL.. 24

DECISION ON FINDING.. 26

Onus and Standard of Proof. 26

Decision. 26

REASONS FOR DECISION.. 27

Credibility findings. 27

Student 2. 27

Principal Grdovic. 31

The Member 32

Ms. Fletcher 34

Ms. Story. 34

Ms. Pokorski 35

Ms. Munro. 37

Mr. Warda. 38

Factual findings. 38

1. Student 2’s [XXX]history and personal issues. 40

2. Was the Member’s office door open or closed during the Incident?. 43

3. The timing of the Incident 45

4. The “beautiful” comment 50

5. The “10” rating comments. 52

6. The “butt” comment 56

7. Student 2 felt uncomfortable during the Incident 60

8. Issues regarding the School administration’s investigation. 63

Legal conclusions. 65

1(5): The College did not prove that the Member failed to maintain the standards of the profession 66

1(7): The Member abused a student verbally. 66

1(7.2): The Member abused a student psychologically or emotionally. 67

1(15), 1(18) and 1(19): The Member failed to comply with the Education Act or the Regulations made under that Act; his acts were disgraceful, dishonourable or unprofessional; and he engaged in conduct unbecoming a member 68

PENALTY.. 70

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 28, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated August 28, 2013 was served on Zubair Ahmed Shaikh (the “Member”), requesting his presence on September 18, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 28, 2016. The proceedings continued on January 29, 2016, February 11 and 12, 2016, and March 29, 2016.

The Member was in attendance throughout the hearing of this matter and had legal representation.

OVERVIEW

The allegations of professional misconduct in this matter arose as a result of the Member’s alleged conduct on November 29, 2011 during a meeting with Student 2. The Member, a school [XXX] at the time, and Student 2 both attended a [XXX]presentation on the morning of November 29, 2011 and Student 2 helped the Member return materials to his office following the presentation. The Member and Student 2 engaged in a discussion when they got back to his office. It is alleged that, during this conversation, the Member told the student that she was beautiful, that he or his friends would rate her as a “10” if they saw her walking down the street, and that he had to try hard not to look at her “butt” when she was doing [XXX] during the presentation (the “Incident”).

Student 2 testified that the Member made the above comments to her, as set out at paragraph 6 of the Notice of Hearing. The Member denied the allegations. 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, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(15), 1(18) and 1(19).

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 subsections 30(2) and 40(1.1) of 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 or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;¹

(e) 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);

(f) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Zubair Ahmed Shaikh is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Kawartha Pine Ridge District School Board (the “Board”) as a [XXX]at [XXX](the “School”) in [XXX], Ontario.

3. At all material times, Student 1 and Student 2 were female students at the School.

4. From in and around September 2008 to in and around November 2008, the Member made inappropriate comments to Student 1 including but not limited to:

(a) said he fantasized about sex with her;

(b) said they should meet outside school;

(c) said they should have a threesome with another female teacher at the school;

(d) asked the Student if she played with herself;

(e) asked the Student if she liked rough sex;

(f) said, “he would probably get hard as fuck” if she pulled her top down;

(g) told the Student he wanted to suck on her breast.

5. In or about November 2008, the Member requested and/or permitted Student 1 to expose her breast to him.

6. On or about November 29, 2011, the Member made inappropriate comments to Student 2 including but not limited to:

(a) told her she was beautiful;

(b) told her if she were walking down the street, he would rate her as 10;

(c) said that if he pointed her out to friends, they would rate her as a 10;

(d) said that when she was doing [XXX] he had to try hard not to look at her butt.

WITHDRAWAL OF ALLEGATIONS

The College led no evidence with respect to the particularized allegations contained at paragraphs 4 and 5 of the Notice of Hearing, set out above. Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

EVIDENCE

Uncontested Facts

The following uncontested facts are set out to provide context for the contested evidence in this matter.

On June 1, 2010 (more than one year before the alleged Incident), Ms. Silvia Grdovic (“Principal Grdovic”) conducted a Teacher Performance Appraisal (“TPA”) for the Member (see Exhibit 9). The Member received a satisfactory evaluation and the principal had included a number of positive comments about his rapport with students, the learning environment that he provided, and his professional attitude, among other things.

At all material times, the [XXX]department was located in a discrete area of the School (see Exhibit 21). Ms. Fletcher was the [XXX]of the [XXX]department, and the [XXX]included the Member, Ms. Munro, Ms. Davidson, and Ms. Story. The [XXX]secretary was Ms. Pokorski. Students were generally allowed to choose which [XXX]they wanted to see at the initial point of contact. Up until November 29, 2011, Student 2 had not chosen to meet with the Member, although she had seen other[XXX].

Student 2 did not know the Member personally, prior to November 29, 2011. She knew of him only to the extent that he was a teacher at the School and because her [XXX]had played [XXX]with him in the community.

On November 29, 2011, a [XXX]presentation was held in the morning at the School. The presentation was about the entry requirements for the [XXX]The Member helped to prepare for that presentation in the morning and he also had to prepare for a [XXX] that was scheduled for that afternoon. The [XXX]presentation took place during first period, although there are contested portions of the timeline which are set out below.

Student 2 attended the [XXX]presentation at the School because she was interested in learning more about this career path. She wanted to find out about the physical requirements and the treatment of women in the[XXX], and she asked the presenter about these topics at the end of the presentation. The presenter responded appropriately to her questions. Student 2 then decided to do some [XXX] in the presence of the [XXX] presenter, students, and the Member. She did these [XXX] of her own volition and had not been asked to do them.

After the presentation, Student 2 helped the Member carry presentation materials back to his office in the [XXX]department. The Member put some of the materials in the waiting area of the [XXX]offices and brought some of his belongings into his office, while Student 2 was in the waiting area. The Member and Student 2 were speaking with each other and continued their conversation in his office, although the details of their meeting are contested, as set out below.

At the end of their meeting on November 29, 2011, Student 2 made a follow-up appointment with the Member, but she never attended this subsequent appointment. Ms. Fletcher testified that she entered Student 2’s follow-up appointment (for December 5, 2011) into the appointment log, but that Student 2 did not attend this follow-up appointment with the Member (see Exhibit 29).

The date on which the December 5, 2011 follow-up appointment was set is contested. Ms. Fletcher believed that she would have scheduled the December 5, 2011 follow-up appointment for Student 2 on December 2, 2011 (when she was covering for the [XXX]secretary who was on her lunch break), but she acknowledged that it was possible that the appointment was set on a different date. Ms. Fletcher did not have a distinct memory that the December 5, 2011 appointment was entered into the log on December 2, 2011, and she acknowledged, during cross-examination, that she had merely deduced that the appointment was set on that date. Ms. Fletcher further acknowledged that it was possible for the December 5, 2011 appointment to have been set on November 29, 2011, although she found it unlikely that a [XXX]appointment would have been scheduled that far in advance.

Following the alleged Incident, Student 2 met twice with Principal Grdovic to discuss her account of the Incident. These meetings were held in early December 2011 and on January 11, 2012 (see Exhibits 4 and 6). The January 2012 interview also involved Board staff. Student 2’s mother was present for both interviews.

Principal Grdovic discussed the alleged Incident with the Member in early December 2011, at which point the Member denied the allegations against him. On December 7, 2011, the Member was assigned to home while the Board investigation was underway.

On December 21, 2011, Principal Grdovic conducted a formal interview of the Member with Superintendent Foy at the Board offices. The Member’s union representative, Mr. Warda, was present at this interview. Principal Grdovic questioned the Member during this interview and Superintendent Foy took notes, which were subsequently reviewed and approved by the principal (see Exhibit 5). Although Member’s Counsel objected to the admissibility of Exhibit 5, the Committee ruled that the typed notes were admissible, given the relaxed rules of evidence at hearings before the Discipline Committee. The Committee finds that the notes are relevant; they were identified by Principal Grdovic who was present at and had an independent recollection of the interview when they were recorded; and, Principal Grdovic approved of the notes’ content after having reviewed them.

On January 20, 2012, Principal Grdovic sent a letter to the Member informing him of the outcome of the investigation into his conduct (see Exhibit 8). The letter indicates that the School administration believed that the Member made “a number of unsolicited, unwelcome and inappropriate comments of a sexual nature” to Student 2 (see Exhibit 8). As a result, the Board suspended the Member without pay for three days and the Member was removed from the [XXX]department when he returned to teaching. This was the first time that the Member had ever been disciplined by the Board.

On January 26, 2012, the Member returned to teaching at the School (see Exhibit 8), and he has continued teaching there since then.

On February 3, 2012, the Member’s union (the Ontario Secondary School Teachers’ Federation) initiated a grievance on behalf of the Member (see Exhibit 23).

On February 27, 2015, the Member received a satisfactory TPA, in which his current principal commented, among other things, that the Member demonstrated a positive rapport with students and that there was a comfortable and secure feeling in his classroom (see Exhibit 25).

College Witnesses

The College called two witnesses: Student 2 (as she is referred to in the Notice of Hearing) and Principal Grdovic. Relevant portions of the witness’s evidence will be set out in greater detail the Committee’s reasons below.

Student 2

Student 2 was a [XXX]-year-old [XXX][XXX] student at the time of this hearing, but she was a [XXX]year-old grade [XXX] student at the School at the time of the events in question. Student 2 provided a first-hand account of her encounter with the Member on November 29, 2011. She testified that the Member made inappropriate comments to her, as outlined in paragraph 6 of the Notice of Hearing, and that these comments made her feel uncomfortable.

Student 2 left the School after her [XXX][XXX] of grade[XXX], in January 2012, and she was [XXX]for the remainder of the academic year because she did not feel comfortable returning to the [XXX]. She was concerned that others at the School would find out about the Incident and might not believe her, given that the Member was one of the more popular teachers at the School. Student 2 subsequently transferred to a different school for grade[XXX].

The Committee finds that Student 2’s evidence was credible, for the reasons provided under the “Credibility findings” heading below.

Principal Grdovic

Principal Grdovic is an experienced school administrator, who was the Member’s principal at the time of the events in question. By November 2011, she had approximately four years’ experience as a principal and ten years’ experience as a vice-principal. During her time as a school administrator, Principal Grdovic had dealt with student complaints about teacher behaviour of a similar nature to the complaints involving the Member in this matter. Principal Grdovic testified about her involvement in this matter following the Incident. She investigated the Incident by interviewing Student 2, her mother, and the Member, and she was also involved in the Board’s investigation of the Member’s conduct.

The Committee finds that Principal Grdovic’s evidence was credible, for the reasons provided under the “Credibility findings” heading below.

Member’s Witnesses

The Member called five witnesses: Ms. Aileen Fletcher; Ms. Rhonda Story; Ms. Barbara Pokorski; Ms. Arlene Munro; and, Mr. David Warda. The Member also testified on his own behalf. Relevant portions of the witness’s evidence will be set out in greater detail the Committee’s reasons below.

The Member

The Member began working as a [XXX]and a teacher at the School in 2005. He taught at the School at all material times, and at the time of the hearing of this matter, he remained a [XXX] teacher at the School. Between 1999 and 2005, the Member taught [XXX], [XXX], and [XXX] at another school within the same Board. Before starting his teaching career with the Board, the Member successfully completed a number of teaching placements, both locally and abroad (see Exhibits 13 and 14). The Member received his Bachelor of Education degree in 1997 and his Bachelor of Arts degree in 1996, with his [XXX] and [XXX] studies focusing in part on [XXX] issues. The Member also owns and operates a recreational sporting business and he has been involved with several community organizations (see Exhibit 14).

The Member denied all of the allegations contained in the Notice of Hearing. He referred to his past successful teacher performance appraisals, which indicated that he had a very good rapport with students in his care (see Exhibits 15 and 16). He also noted that he had attended a number of professional development and leadership opportunities in areas of interest to him, including bullying, body image and eating disorders, among others (see Exhibits 14, 17, 18, and 19). The Member had presented some of the information that he had learned at these training opportunities to staff at the School (see Exhibit 20). According to the Member, these training sessions made him more sensitive to these types of issues.

The Member provided his account of the Incident and denied having engaged in any inappropriate or unprofessional conduct.

The Committee finds that the Member’s evidence lacked credibility, for the reasons provided under the “Credibility findings” heading below.

Ms. Fletcher

Ms. Fletcher’s career in education began in 1990. After teaching for a number of years, she received her first position in [XXX]in 1998. In February 2002, Ms. Fletcher was hired as the [XXX] of the [XXX]department at the School. She encouraged the Member to pursue a career in [XXX][XXX], as she believed that he had the qualities that would make him an effective [XXX]. Ms. Fletcher gave evidence about the [XXX]department at the School and she testified about her limited interactions with Student 2 before and after the alleged Incident.

The Committee finds that Ms. Fletcher’s evidence was credible, for the reasons provided under the “Credibility findings” heading below.

Ms. Story

Ms. Story’s career in education began in 1999. She taught for a number of years and began working in the [XXX]department at the School in 2008. She gave evidence about her various encounters with Student 2 prior to the alleged Incident. She also testified that she was in and out of the [XXX]office at the time that the Member met with Student 2 on November 29, 2011 and that she did not observe anything unusual about this meeting. She acknowledged, however, that she was not paying very close attention and that she was in and out of the office because she was teaching a class during that period.

The Committee finds that the portions of Ms. Story’s evidence dealing with her previous encounters with Student 2 were credible, for the reasons provided under the “Credibility findings” heading below, but that her evidence in relation to the Incident lacked credibility and was biased in favour of the Member.

Ms. Pokorski

Ms. Pokorski worked as a secretary with the Board from 1991 until her retirement in 2013. From 2007 until 2013 she was the secretary in the [XXX]department. She testified about her brief encounter with the Member and Student 2 on November 29, 2011 and about how she kept records of student appointments in the [XXX]department.

The Committee finds that Ms. Pokorski’s evidence lacked credibility, for the reasons provided under the “Credibility findings” heading below.

Ms. Munro

Ms. Munro’s career in education began in 1977 and she taught at the School throughout her career. In 1989, she began working in the [XXX]department. She testified about her limited knowledge of the events of November 29, 2011. Her office was situated next to the Member’s office, and although she could hear that the Member was in his office with a student during second period on November 29, 2011, she could not hear what the conversation was about. Ms. Munro testified that Ms. Pokorski had gone to speak to the Member and Student 2 at one point, and that she (Ms. Munro) subsequently went to check if the student was in distress, which she was not. Ms. Munro testified that the student was in the Member’s office from the time that the presentation ended until around the beginning of lunch time.

The Committee finds that Ms. Munro’s evidence lacked credibility and was of limited assistance with respect to the substance of the Incident, for the reasons provided under the “Credibility findings” heading below.

Mr. Warda

Mr. Warda’s career in education began in 1997 and he taught until 2009, when he began working directly for the Ontario Secondary School Teachers’ Federation (the “OSSTF”) as first vice-president. Mr. Warda was the Member’s union representative in this matter. He testified about his involvement in the Member’s meeting with the Board on December 21, 2011, which he attended as the Member’s union representative (see Exhibit 31), and the follow-up from that meeting. Mr. Warda acknowledged that he was fairly inexperienced as a union representative at the time, and that he found it difficult to keep up and record what was being said during the Member’s December 21, 2011 Board interview.

The Committee finds that Mr. Warda’s evidence was credible but that it was generally unhelpful, for the reasons provided under the “Credibility findings” heading below.

LEGAL ISSUES

Production of third party documents

During her testimony, Student 2 testified that she was able to remove herself from the Incident on November 29, 2011 by texting her boyfriend and asking him to call her. She testified that her boyfriend phoned her at 11:06 or 11:07 a.m., shortly after the lunch bell rang, at which point she told the Member that she had to leave. In order to test the reliability of this evidence, Member’s Counsel requested that Student 2 make reasonable efforts to locate her phone that she used at the time and to contact her phone provider to obtain copies of the text messages. Member’s Counsel indicated that if those inquiries were unsuccessful, the Member would consider bringing a motion for the production of records from the phone provider. College Counsel opposed this request, indicating that it would be unreasonable to require a [XXX]-year-old lay witness to seek the production of phone records from 2011 that pertain to a phone line that she no longer uses and an account that she no longer has. College Counsel also argued that the Committee can take judicial notice of the fact that a cell phone bill would not include the content of the text messages. College Counsel argued that the request was disproportionate to the value of the evidence sought. Member’s counsel responded that the timing of the text messages (even without the content of them) would be helpful.

In response to this request, the Committee provided Member’s Counsel with a further opportunity to cross-examine Student 2 about the phone and the availability of the records. Student 2 testified that she no longer had the phone that she used at the time of the Incident; that she believed the provider was Bell; and that she did not have records from the time in question. As a result, the Committee declined the Member’s request to have Student 2 make reasonable efforts to locate her phone and contact her phone provider. The Member did not subsequently bring a motion for the production of third party records from the phone provider.

The Committee recognizes that it has the authority to order the production of records pursuant to Rule 7 of the Discipline Committee’s Rules of Procedure and pursuant to subsection 12(1)(b) of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22. The Committee, however, denied the Member’s request to require Student 2 to locate her phone or produce her phone records for the following three reasons: 1) Student 2 is not in possession of the phone records and she would need to seek them from her phone provider (a fourth party); 2) producing the records would likely lead to significant delay; and 3) neither party has an interest in further delaying these proceedings.

Browne v. Dunn rule

On several occasions during the hearing of this matter, College Counsel raised the objection that Member’s Counsel did not properly put the Member’s expected evidence to Student 2 in order to allow her to respond to that anticipated evidence. According to College Counsel, little weight should be given to the evidence that Student 2 was not given the opportunity to address.

In particular, the rule in Browne v. Dunn was not followed with respect to the following evidence of the Member: 1) the Member testified that Student 2 had told him that a [XXX]had [XXX]her on the [XXX]as a[XXX], which subsequently caused her to have [XXX]episodes; 2) the Member testified that he had told Student 2 that he did not think the [XXX]presenter was asking her to do [XXX], and that it was not appropriate for her to do [XXX] in front of him; and 3) the Member testified that he had told Student 2 that if she stopped skipping school and started handing in more assignments, her marks would improve and so would her confidence. None of the above evidence of the Member was put to Student 2 during her examination and she therefore did not have the opportunity to respond to this evidence. Accordingly, the Committee has given little weight to this evidence, which was not properly put to Student 2.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct in that he breached subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. According to College Counsel, the evidence presented in this hearing related to the allegations particularized in paragraph 6 of the Notice of Hearing. No evidence was led with respect to paragraphs 4 and 5 of the Notice of Hearing.

With respect to paragraph 6(a) of the Notice of Hearing, College Counsel submitted that the Member admitted that he told Student 2 that she was beautiful, and that the Committee should therefore find that this particularized allegation has been proven. College Counsel further submitted that Student 2’s credible evidence with respect to paragraphs 6(b) and 6(c) of the Notice of Hearing ought to be preferred over the Member’s unreliable evidence in this regard.

With respect to paragraph 6(d) of the Notice of Hearing, College Counsel submitted that the Member’s evidence was inconsistent and unreliable, and that it impaired the overall reliability of his evidence with respect to a number of key issues, including those set out at paragraphs 6(a)-(c) of the Notice of Hearing. The Member denied particularized allegation 6(d) and explained, on several occasions during the School, the Board, and the College’s investigation of this matter, that he was concerned that the [XXX]presenter was “checking out” Student 2 while she was doing [XXX] at the end of the [XXX]presentation (see Exhibits 5, 26, and 37). Nevertheless, the Member testified before the Committee that the [XXX]presenter had behaved completely appropriately and that there was no reason to be concerned about the propriety of his actions. College Counsel urged the Committee not to believe the Member’s explanation, which has evolved over time. According to College Counsel, the Committee ought to accept Student 2’s account that the Member made the inappropriate comment to her, as alleged at paragraph 6(d) of the Notice of Hearing.

College Counsel urged the Committee to make several findings of fact in accordance with Student 2’s version of events. Among others, College Counsel submitted that the Committee ought to find that the door to the Member’s office was closed during the alleged Incident. As the Member acknowledged during cross-examination, the [XXX]department was set up for privacy: it was in a separate area of the School, and the [XXX] offices had doors and frosted windows (unlike other teachers’ offices). Although the Committee received evidence from some members of the [XXX]staff who testified that they saw the Member’s door open during the alleged Incident, College Counsel submitted that, at most, this evidence demonstrated that the Member’s door was open during the first few minutes of the alleged Incident. College Counsel urged the Committee to find that the Member’s door was closed for the duration of the meeting, and that the type of conversation that the Member had with Student 2 was precisely the type of conversation that would happen behind closed doors.

With respect to the timing of the alleged Incident, College Counsel urged the Committee to accept Student 2’s timeline over that of the Member. Student 2 testified that her November 29, 2011 meeting with the Member began after the [XXX]presentation and ended shortly after the lunch bell rang at 11:05 p.m. Ms. Munro, who was a witness for the Member, independently confirmed Student 2’s timeline. College Counsel submitted that the Member’s evidence that the meeting only lasted approximately 10 to 20 minutes and ended at approximately 10:30 a.m. is not reliable, and damages the Member’s credibility. According to College Counsel, the phone records entered as Exhibit 22 are of little assistance when determining whose timeline is more probable.

College Counsel also pointed the Committee to Exhibit 7, which sets out Principal Grdovic’s concerns following her investigation into the Member’s conduct. College Counsel submitted that the Committee ought to ask itself similar questions when deliberating.

Finally, College Counsel called into question the credibility of the [XXX]staff members who testified. College Counsel submitted that Exhibits 33 and 34, which are photocopies of the November 29, 2011 appointment logs from the [XXX]office, have been doctored. Ms. Pokorski testified that she did not photocopy these logs, and the Committee received no evidence to explain why the logs were photocopied, which was not the typical practice of the [XXX]department. According to College Counsel, the Committee ought to question why changes were made to the appointment logs, and it ought to be troubled that members of the [XXX]staff were willing to provide inappropriate support to their colleague. College Counsel also questioned how members of the [XXX]staff could testify that they remembered a moment in time from five years ago (the Incident), which was totally inconsequential to them at the time.

Ultimately, College Counsel submitted that if the Committee accepts the College’s version of events and makes the corresponding factual findings, then the Committee ought to find that the Member’s conduct gives rise to a finding of professional misconduct, as alleged.

SUBMISSIONS OF MEMBER’S COUNSEL

Member’s Counsel submitted that the Committee ought to dismiss the allegations of professional misconduct against the Member, because the College has not met its burden of proof. According to Member’s Counsel, the Committee ought to consider two central themes when determining the outcome of this matter: 1) the credibility of Student 2’s allegations against the Member; and 2) the intention and context of the alleged comments attributed to the Member.

1. Student 2’s credibility

Member’s Counsel urged the Committee to place very little weight on Student 2’s evidence due to her lack of credibility. In particular, Member’s Counsel submitted that Student 2’s evidence lacked credibility because of (a) external inconsistencies in her evidence, (b) her inability to recall certain events in question, and (c) the unreasonableness or implausibility of her account.

(a) External Inconsistencies

Member’s Counsel submitted that there were three key areas in which Student 2’s evidence was contradicted by other, more credible evidence. First, Student 2’s evidence with respect to her prior interactions with Ms. Story is inconsistent with Ms. Story’s evidence (see Exhibit 31). Similar to Student 2’s evidence with respect to the alleged Incident, her evidence regarding her April 2011 impromptu meeting with Ms. Story is significantly different from the [XXX]’s account.

Second, Member’s Counsel submitted that Student 2’s evidence regarding how and when she scheduled a subsequent appointment with the Member (following the alleged Incident) is externally inconsistent with the documentary evidence (see Exhibit 6), and the evidence of Ms. Fletcher (see Exhibit 29) and the Member.

Third, Member’s Counsel submitted that Student 2’s evidence regarding the November 29, 2011 meeting is externally inconsistent. Student 2 was the only witness who testified that the door to the Member’s office was closed during the meeting. She also denied having made negative comments about her mother during the November 29, 2011 meeting, but Ms. Pokorski’s evidence demonstrates that a discussion about Student 2’s relationship with her mother arose during the meeting.

(b) Inability to recall certain events in question

Member’s Counsel submitted that Student 2 demonstrated an inability to recall several events in question, which call into question her credibility. First, she was confused with respect to the timing of the [XXX]presentation and refused to agree with the correct timing when she was confronted with documentary evidence in this regard (see Exhibit 33).

Second, Member’s Counsel submitted that Student 2 could not recall Ms. Pokorski joining the conversation at one point during her November 29, 2011 meeting with the Member.

Third, Member’s Counsel submitted that Student 2’s recollection of the allegations set out at paragraph 6 of the Notice of Hearing was inaccurate. For instance, Student 2 testified that the Member commented about her “ass” in relation to particularized allegation 6(d) and not her “butt”, as is alleged in the Notice of Hearing and as she had reported to Principal Grdovic closer to the time of the alleged Incident. Similarly, Member’s Counsel submitted that Student 2’s evidence with respect to particularized allegations 6(b) and 6(c) was inaccurate and inconsistent with the language of the allegations as they are set out in the Notice of Hearing.

(c) Unreasonableness or implausibility of Student 2’s account

Member’s Counsel submitted that Student 2’s evidence lacked credibility because her account was improbable and unsupported by any other witnesses in this matter. Among other things, Member’s Counsel submitted that it was improbable that: the Member held a closed-door meeting with a female student, despite the [XXX]department’s open door policy; the Member delivered a series of pick-up lines to a student that he barely knew and that he did not teach; the Member fabricated comments that were oddly particular (including that Student 2’s mother referred to her as “muffin top”); Student 2 made a follow-up appointment the same day as the alleged Incident; and, Student 2’s parents waited nearly an entire week before making a complaint to School administration. Member’s Counsel further submitted that the College failed to call any witnesses to corroborate Student 2’s account, including her parents or her boyfriend at the time.

2. The intention and context of the alleged comments attributed to the Member

Member’s Counsel urged the Committee to consider the Member’s intentions and the context of his alleged comments when determining the outcome in this matter, and she relied on Ontario College of Teachers v. Fabel, 2010 LNONCTD 19 at paragraphs 127-133, 169-173, 356 and 362 in support of the position that context and intention matter. According to Member’s Counsel, the Member did not intend to “hit on” or to make Student 2 feel uncomfortable. His intention was to provide supportive [XXX].

With respect to context, Member’s Counsel submitted that the Member considers himself to be a [XXX], he has a wife and two young daughters, he is interested in oppression and [XXX] issues, and he has recently attended a conference on body image issues and presented information about this topic to his colleagues. Member’s Counsel added that the Member is not a trained psychotherapist and was doing his best as a [XXX] with his limited skill-set. In addition, Member’s Counsel submitted that the Member had nothing to hide: his door was open during the alleged Incident; he invited Ms. Pokorski into the conversation; and he attended a meeting with Principal Grdovic following the alleged Incident, without requesting union representation.

In light of the above, Member’s Counsel submitted that the College has not met its burden of proof, and that the Committee ought to dismiss the allegations against the Member.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel replied to seven of the submissions made by Member’s Counsel.

First, College Counsel disagreed with the submission of Member’s Counsel that Student 2’s evidence regarding her prior interactions with Ms. Story was externally inconsistent. Student 2 disagreed with some of the characterizations, but she recalled meeting with Ms. Story and her evidence was not inconsistent according to College Counsel.

Second, with respect to the submission of Member’s Counsel that the door to the Member’s office was open during the alleged Incident, College Counsel reiterated Student 2’s evidence that the door was closed, and commented that the door might have been open for a few minutes at the start of the November 29, 2011 meeting but that it was then closed for the duration of the Incident. He further submitted that the Committee received no evidence from Ms. Pokorski regarding the Member’s door being open or closed, when she came to remind the Member to prepare for the presentation on the afternoon of November 29, 2011.

Third, with respect to the submission of Member’s Counsel that Student 2 could not recall the timing of the [XXX]presentation, College Counsel submitted that the student simply got confused during cross-examination. According to College Counsel, the totality of Student 2’s evidence was clear that she went to the Member’s office after the presentation and she left his office shortly after the lunch bell rang at 11:05 a.m.

Fourth, with respect to the submission of Member’s Counsel that Student 2 was unable to recall Ms. Pokorksi joining the conversation during the alleged Incident, College Counsel submitted that this inability to recall does not affect Student 2’s credibility. According to College Counsel, it is insignificant that Student 2 did not recall this 30-60 second encounter with Ms. Pokorski, given that the encounter was brief and that Student 2 did not know Ms. Pokorski.

Fifth, with respect to the submission of Member’s Counsel that Student 2’s evidence with respect to particularized allegations 6(b) and 6(c) was inaccurate and inconsistent with the relevant language set out in the Notice of Hearing, College Counsel submitted that it is not significant that the evidence may have emerged slightly differently than the precise wording set out in the Notice of Hearing.

Sixth, with respect to the submission of Member’s Counsel that Student 2’s evidence was unreasonable or implausible, College Counsel submitted that it is normal that Student 2’s account might seem improbable because it is not expected or reasonable for students to find themselves in a situation like the November 29, 2011 Incident. Given the Member’s outlandish behaviour, it is not surprising that Student 2’s account may seem unusual. This is because the Member behaved in an unusual and unreasonable manner. College Counsel added that it was not unreasonable for Student 2’s parents to have reported the alleged Incident approximately one week after it occurred. He submitted that it was normal for parents to think about how to handle this type of situation and to then decide what action to take.

Seventh, with respect to the submission of Member’s Counsel regarding intention and context, College Counsel submitted that the Member’s intention does not matter. Whether or not he intended to make Student 2 feel uncomfortable, his comments speak for themselves and it was reasonable for Student 2 to perceive them in the way that she did.

DECISION ON FINDING

Onus and Standard of Proof

The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, the parties’ submissions and the relevant jurisprudence presented, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Zubair Ahmed Shaikh committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(15), 1(18) and 1(19).

The College has not advanced sufficient evidence to prove the standards of the profession, and the Committee therefore does not find that the Member contravened subsection 1(5) of Ontario Regulation 437/97.

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions of both parties. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. No evidence was led with respect to the allegations particularized at paragraphs 4 and 5 of the Notice of Hearing and the College accordingly withdrew the allegation that the Member abused a student or students sexually, contrary to subsection 1(7.3) of Ontario Regulation 437/97. The Committee, therefore, makes no findings in this regard.

The Committee notes that witness credibility is important in this matter, given that it heard two significantly different versions of events from the College and the Member. The Committee therefore addresses the credibility of each witness at the outset of its reasons. The Committee then sets out its factual findings and the reasons for these. Finally, the Committee explains why the facts in this matter give rise to a finding of professional misconduct.

Credibility findings

Student 2

The Committee finds that Student 2’s evidence was credible. She provided an honest and straightforward account of the Incident, in which she testified that the Member made the comments to her as alleged at paragraphs 6(a)-(d) of the Notice of Hearing. She testified that the Member sat close to her while they were in his office, that he leaned in towards her when he made the comments, and that the door to his office was closed at the time. She had a clear recollection of what the Member said and how he said it. With the exception of a couple of insignificant and peripheral issues, her evidence regarding the key events in question was internally consistent.

Student 2’s evidence was also externally consistent with that of Principal Grdovic, and it was even corroborated in part by the Member’s account. The Member admitted that he told Student 2 that she was beautiful and he agreed in cross-examination that he had used rating scales. To be sure, the Member attempted to qualify and contextualize his use of rating scales and his comment that Student 2 was beautiful, but the Committee did not find his explanations to be credible (as will be explained below).

The Committee also rejects the submissions of Member’s Counsel that Student 2 lacked credibility. First, the Committee rejects the submission that Student 2 lacked credibility because her evidence was externally inconsistent with that of other witnesses. For instance, Member’s Counsel submitted that Student 2 testified that the door to the Member’s office was closed during the Incident, whereas the Member, Ms. Pokorski, Ms. Munro and Ms. Story all testified that the door was open. For reasons to be expanded upon below, the Committee did not find that the Member, Ms. Pokorski or Ms. Munro provided credible evidence. With respect to Ms. Story’s evidence regarding the door of the Member’s office, the Committee notes that she had no reason and limited opportunity to observe whether the Member’s door was open or closed at the time of the Incident. The Committee further finds that Ms. Story exaggerated her opportunities to observe that the door was open during re-examination, which demonstrates her bias in support of the Member. Therefore, the Committee does not find that Student 2’s evidence was externally inconsistent with any other credible evidence.

With respect to the submission of Member’s Counsel that Student 2 lacked credibility because her evidence regarding her prior interactions with Ms. Story was externally inconsistent, the Committee disagrees. The Committee recognizes that Student 2 shared different levels of detail about her personal family issues in different circumstances. The level of detail that she shared with Ms. Story, her [XXX], was different than the level of detail that she shared with Principal Grdovic. This is not surprising. Student 2 was an [XXX], female student who felt more comfortable sharing certain details with her [XXX] than with her principal. She was a vulnerable student with a previous [XXX] history.

The Committee will not take the leap suggested by Member’s Counsel that because Student 2 shared intimate personal details with Ms. Story in April 2011 (and later failed to mention some of them), that she must have similarly shared intimate details with the Member during the Incident and later denied them (which would demonstrate Student 2’s lack of credibility). Student 2’s impromptu conversation with the Member in November 2011 is not analogous to her discussion with Ms. Story in April 2011. Student 2’s discussion with Ms. Story in April 2011 was the beginning of a [XXX]relationship. Student 2 felt comfortable opening up to Ms. Story and she returned to see Ms. Story as a [XXX] on a number of occasions.

The opposite was true of Student 2’s relationship with the Member. He was not Student 2’s [XXX]. They barely knew each other. She did not feel comfortable opening up to him and she did not return to see him. It is entirely plausible that Student 2 would not have shared personal family details with the Member, as she may have with Ms. Story, who she felt comfortable with in April 2011 (and continued to see in a [XXX]capacity thereafter). Student 2’s account is reasonable given the circumstances and the Committee does not believe that she was being dishonest by sharing certain information with people she trusted and less personal information with those with whom she felt less comfortable.

Second, the Committee rejects the submission of Member’s Counsel that Student 2 lacked credibility because of her inability to recall several events in question. With respect to the timing of the [XXX]presentation, the Committee recognizes that Student 2 was confused as to whether the presentation began during first or second period. The Committee, however, believes that this was an honest mistake attributable to the passage of time and notes that this factual detail had little bearing on the outcome of this matter.

With respect to Student 2’s inability to recall Ms. Pokorski joining the conversation at one point during the Incident, the Committee does not believe that this damages Student 2’s credibility. Ms. Pokorski’s evidence was not credible and the Committee questions her involvement during the Incident. Even if the Committee believed that she was involved in the way that she said she was, the Committee finds it reasonable that Student 2 would have been more focused on the events in question than on Ms. Pokorski’s very limited involvement during the longer and more significant Incident. Student’s 2’s inability to recall Ms. Pokorski’s involvement is immaterial.

With respect to the submission of Member’s Counsel that Student 2’s recollection of the Incident was inaccurate because she testified that the Member commented about her “ass” (and not her “butt” as alleged at paragraph 6(d) of the Notice of Hearing), the Committee finds that this is a distinction without a meaningful difference. This minor language inconsistency does not damage the overall credibility of Student 2’s evidence with respect to the significant events in question.

Third, the Committee rejects the submission of Member’s Counsel that Student 2’s evidence lacked credibility because it was implausible. For instance, the Committee disagrees with the suggestion of Member’s Counsel that it is implausible that the Member held a closed-door meeting with Student 2. Given the nature of the conversation, it is not implausible that the door was closed, regardless of the [XXX]department’s open-door policy. The Committee further disagrees that it is implausible that the Member delivered a series of pick-up lines to a student that he barely knew and that he did not teach. The Committee accepts that this is an uncommon situation and that most teachers would not conduct themselves in this manner, but the same can be said for nearly all cases of professional misconduct (they are the exception and not the norm in the teaching profession). Given the totality of the evidence in this case, it is not implausible that the Member made the comments as alleged.

Accordingly, the Committee finds that Student 2’s evidence was credible, and it gives significant weight to her account of the Incident.

Principal Grdovic

The Committee finds that Principal Grdovic’s evidence was credible. The principal testified in a straightforward manner with the assistance of her contemporaneous notes that were taken during the course of her investigation into the Member’s alleged conduct. Her observations and conclusions were reasonable, and they were consistent with other credible evidence before the Committee.

The Committee recognizes that Principal Grdovic relied on notes taken by Superintendent Foy (see Exhibit 5), but accepts that the principal had reviewed these notes at the time and found them to be consistent with what was said during the meeting.

The Committee rejects the suggestion of Member’s Counsel that Principal Grdovic should not have allowed Student 2’s mother to be present during her first interview of Student 2. This decision was an appropriate exercise of Principal Grdovic’s discretion as she investigated the Member’s alleged conduct. Student 2 was a vulnerable student who wanted the support of her family during the investigation process. The Committee does not believe that her mother’s attendance compromised the investigation process.

The Committee finds that Principal Grdovic conducted a thorough investigation and drew reasonable conclusions. The Committee shares Principal Grdovic’s concern that when the Member was asked whether he had made certain comments during the investigation, he would begin by denying having made the comment but would then explain “how he had said something very nearly identical to what the student alleged but with a different interpretation” (see Exhibit 7 at paragraph 12). During the course of the hearing, the Committee observed similar behaviour from the Member: he agreed with many of the facts put to him, but then tried to qualify them in a way that was unreasonable or implausible.

The Member

The Member testified on his own behalf, but his evidence lacked credibility. It was unreasonable, implausible and self-serving, and it contained a number of inconsistencies. First, the Committee found that parts of the Member’s evidence were unreasonable. For instance, the Member testified that his November 29, 2011 meeting with Student 2 lasted only 15 to 20 minutes. Given the content of this conversation and the amount of material that was covered during this time, the Committee finds that the Member’s timeline was unreasonable.

Second, the Committee found that the Member’s evidence was internally inconsistent. He repeatedly attempted to revise or re-characterize facts that were recorded in the documentary evidence presented to the Committee. For example, the Member admitted that he told Student 2 that she was beautiful, but during the hearing he attempted to characterize this by saying that he meant Student 2 was a beautiful person and that he was not referring to physical beauty. With respect to the “10 rating” comments that he was alleged to have made at paragraphs 6(b) and (c) of the Notice of Hearing, the Member admitted during cross-examination that the following quotation reflected what he told Student 2: “I bet that if I asked any of your friends walking around out there they would rate you a 10” (Exhibit 26 at page 7). The Member clarified that he also said that anyone who knew Student 2 would rate her as a “10”. The Member, however, attempted to argue that it was common practice among [XXX] to use holistic rating scales to gauge how people were feeling about themselves. With respect to the “butt” comment alleged at paragraph 6(d) of the Notice of Hearing, the Member attempted to explain that he was trying to make sure that the [XXX]presenter was not looking inappropriately at Student 2; however, the Member testified that there was nothing questionable or inappropriate about the [XXX]presenter’s conduct.

The Committee does not find that the Member’s explanations are credible. His explanations were inconsistent, implausible, and they evolved over time. As a result, the Committee does not believe that the Member was testifying honestly.

Parts of the Member’s evidence were also externally inconsistent. For instance, the Member testified that his November 29, 2011 meeting with Student 2 ended at approximately 10:30 or 10:35 a.m. (during period 2). Student 2, on the other hand, testified that she was with the Member until shortly after the lunch bell rang at 11:05 a.m. Ms. Pokorski and Ms. Munro (who were witnesses for the Member) also testified that he was with Student 2 until shortly after the beginning of the lunch period. The Member’s evidence was also generally inconsistent with Student 2’s account, which was corroborated by Principal Grdovic, and which the Committee found to be credible.

As noted above, the Committee agreed entirely with Principal Grdovic’s assessment of the Member and agrees with her concerns as set out in Exhibit 7. Notably, if the Member were truly concerned about the [XXX]presenter looking inappropriately at Student 2, then the Member should have stopped Student 2 from doing [XXX] in front of him. Similarly, the Member should have never engaged Student 2 in the type of conversation that he did, knowing that she was a vulnerable student and that he was not her [XXX]. Moreover, the timeline that the Member presented was not plausible. Overall, the Committee agrees with Principal Grdovic’s observation that the Member was quick to deny allegations, but then explained that he had said something nearly identical to what Student 2 had alleged, with a different interpretation. The Member’s explanations were not reliable and his evidence generally lacked credibility.

Ms. Fletcher

The Committee finds that Ms. Fletcher’s evidence was credible. Her testimony was uncontroversial, as she generally explained how the [XXX]department was run. The Committee had no reason to disbelieve her evidence, although the Committee notes that she did not give evidence about the Incident itself. Ms. Fletcher only had limited interactions with Student 2 before and after the Incident.

Ms. Story

The Committee finds that Ms. Story’s evidence regarding her encounters with Student 2 prior to the Incident was credible. This evidence was supported by contemporaneous notes and journal entries. Ms. Story’s evidence in relation to the Incident, however, lacked credibility. She had no notes about the Incident and she acknowledged that the events occurred approximately five years ago and that, without any notes, it could be difficult to recall the precise details.

Ms. Story’s opportunity to observe the Incident was limited because, as Ms. Story admitted during cross-examination, she had only observed one “snapshot in time” of the encounter between Student 2 and the Member on November 29, 2011. She did not know what they talked about or how long they were together.

Ms. Story’s evidence during re-examination also demonstrated her bias in favour of the Member. During re-examination, Ms. Story testified that she was “in and out” of the [XXX]offices at the time of the Incident, which the Committee finds to be an exaggerated attempt to support the Member. Ms. Story had, in fact, only observed the Member and Student 2 together for a fleeting moment, but she exaggerated her evidence with respect to her opportunity to observe the Incident (in response to an unrelated question in re-examination) to support the Member’s position. Accordingly, the Committee gave very little weight to the portion of Ms. Story’s evidence relating to the Incident.

Ms. Pokorski

The Committee finds that Ms. Pokorski’s evidence lacked credibility. She had limited opportunity to observe the Incident, her evidence was externally inconsistent with Student 2 and Principal Grdovic’s evidence, and the Committee believes that she attempted to inappropriately support the Member, which demonstrates bias.

Ms. Pokorski had a very limited opportunity to observe the events in question. She admitted, in cross-examination, that her involvement during the November 29, 2011 Incident lasted no more than one minute. The Member had called her over and told her that Student 2 did not like what she looked like in jeans, and Ms. Pokorski responded by saying something along the lines of “you’re a beautiful girl, you can wear whatever you want.” This evidence is inconsistent with Student 2’s evidence, which the Committee found to be more credible than that of the Member and Ms. Pokorski. Student 2 could not recall anyone coming into the office during the Incident and she had no recollection of Ms. Pokorski’s involvement.

Ms. Pokorski was also questioned about the entries that she made in the [XXX]department’s appointment logs (see Exhibits 33 and 34), and the Committee believes that she altered these logs, while Principal Grdovic’s investigation was underway. Ms. Pokorski testified that the handwriting in Exhibit 33 and 34 was hers and that she would have made all of the notations on these exhibits on November 29, 2011, because it was her normal practice to complete the appointment logs by the end of each day. She further agreed, during cross-examination, that the notation that she made beneath Student 2’s name must have been made at some point between 2:00 p.m. and 3:45 p.m. (when she left for the day), based on the other notations contained in the appointment logs. Ms. Pokorski could not explain why a photocopy would have been made of Exhibit 33 (which contained no additional comment regarding Student 2) and Exhibit 34 (which contained an additional notation regarding Student 2), and she agreed that this was unusual.

Ms. Pokorski’s evidence regarding her entries in the appointment logs was also externally inconsistent with the evidence of Principal Grdovic regarding her review of the same logs. Principal Grdovic testified that when she originally reviewed the appointment logs after the complaint was brought to her attention on December 5, 2011, Student 2’s name was not entered on the November 29, 2011 appointment logs. The principal subsequently re-checked the logs, and found that Student 2’s name had been added to the logs. When Principal Grdovic checked the logs a third time (before the Member’s December 21, 2011 interview with the Board), the principal saw the additional notation contained in Exhibit 34. This evidence demonstrates that Ms. Pokorski would have actually entered information into the November 29, 2011 appointment log at some point between December 5, 2011 and December 21, 2011, while the principal’s investigation was ongoing.

Not only does Principal Grdovic’s evidence contradict Ms. Pokorski’s evidence, but it demonstrates that Ms. Pokorski altered the logs after the Member had already been assigned to home and while an investigation into his alleged conduct was underway. Ms. Pokorski’s unusual activity surrounding the November 29, 2011 appointment logs leads the Committee to believe that she had attempted to support the Member, and that her evidence was therefore biased and not forthcoming. The Committee gave no weight to Ms. Pokorski’s evidence.

Ms. Munro

The Committee finds that Ms. Munro’s evidence was of very limited assistance because she had little opportunity to observe the events in question. Ms. Munro testified that she was in the [XXX]office next to the Member’s office at the time of the Incident and that she heard the Member speaking with a student at the time. Ms. Munro could tell that a conversation was occurring, but she could not hear what was said because there was a cinderblock wall between her office the Member’s (see Exhibit 11). Ms. Munro did not know Student 2. Her evidence regarding the Incident was therefore of very limited assistance.

The Committee finds that Ms. Munro’s evidence regarding the substance of the Incident was also internally inconsistent. Although Ms. Munro testified that she could not hear the content of the conversation between Student 2 and the Member (because of the cinderblock wall between their offices), she testified that she could hear Ms. Pokorski tell the student, “I think you look just fine dear”. The Committee finds it unlikely that Ms. Munro would have been unable to hear anything that was said during the Incident, but that she was still able to recall Ms. Pokorski making this comment. It is also unlikely that Ms. Munro would have remembered such an insignificant comment, given the very limited context or understanding that she would have had of the Incident at the time. Accordingly, the Committee believes that Ms. Munro was attempting to support the Member, which demonstrates some bias on her part.

Mr. Warda

The Committee finds that Mr. Warda’s evidence was credible but that it was generally unhelpful. The Committee does not believe that Mr. Warda was deliberately attempting to misrepresent anything to the Committee or that he was attempting to be evasive, but the Committee notes that his recollection was limited and his notes were of little assistance. By his own admission, Mr. Warda’s notes were incomplete and he struggled to accurately record all of the information during the Member’s December 21, 2011 interview with the Board. Mr. Warda had difficulty keeping up with the pace of the interview and he was fairly inexperienced as a union representative at the time. The Committee therefore gave little weight to his evidence.

Factual findings

The parties generally agreed about the events leading up to the alleged Incident. Student 2 and the Member both attended the [XXX]presentation on the morning of November 29, 2011 and were the last people to leave the presentation. Student 2 helped the Member bring materials back to his office after the presentation, and the two of them engaged in a conversation that took place in the Member’s office. The timing and content of this conversation are contested, as are some of the details surrounding it.

According to Student 2, the Member made all of the comments set out at paragraphs 6(a)-(d) of the Notice of Hearing, during the alleged Incident. She testified that her November 29, 2011 meeting with the Member began when they returned from the [XXX]presentation and ended shortly after she heard the lunch bell ring at 11:05 a.m. She further testified that the door to the Member’s office was closed during the meeting, and that the Member made her feel uncomfortable.

The Member, on the other hand, denied the allegations particularized at paragraphs 6(b)-(d) of the Notice of Hearing. With respect to paragraph 6(a) of the Notice of Hearing, he admitted that he told Student 2 that she was beautiful, but he contextualized this comment by explaining that he was not speaking about physical beauty, but rather that he was saying that Student 2 was a beautiful person. The Member maintained that he made no inappropriate comments to Student 2 during the alleged Incident, and that he was supportive and positive during their meeting. He further testified that his meeting with Student 2 was held with the door to his office open, and he noted that Student 2 was not uncomfortable during the meeting.

In the reasons that follow, the Committee addresses the contested evidence in this matter relating to the following topics:

1. Student 2’s [XXX]history and personal issues;

2. Was the Member’s office door open or closed during the Incident?

3. The timing of the Incident;

4. The “beautiful” comment;

5. The “10” rating comments;

6. The “butt” comment;

7. Student 2 felt uncomfortable during the Incident; and

8. Issues regarding the School administration’s investigation.

The Committee makes factual findings only in relation to the evidence that is directly related to the allegations contained in the Notice of Hearing. The Committee then addresses whether or not the Member’s conduct gives rise to a finding of professional misconduct.

1. Student 2’s [XXX]history and personal issues

The Committee received contradictory evidence from Student 2, the Member, Ms. Fletcher and Ms. Story with respect to Student 2’s [XXX]history, including some of her personal issues, and the way that the [XXX]department shared personal information of students. For instance, Student 2 confirmed, during cross-examination, that she had received [XXX]in 2011 from Ms. Story and possibly once from Ms. Davidson as well. She acknowledged that she had discussed her courses, her attendance, her family issues, and her break-up with her boyfriend during these [XXX]sessions. Although she acknowledged that she may not have always wanted to go home, and that she had in fact moved out of her house for two weeks in 2011, she maintained that she was never kicked out of her house, which she described as a safe place where she was always welcome. Student 2 disagreed that her moving out was an indication of an unhealthy relationship with her mother.

Ms. Story confirmed that she had been Student 2’s [XXX] in 2011. According to Ms. Story, they had first met one afternoon in April 2011 because Student 2 was not going home that night due to an argument that she had had with her mother. Ms. Story testified that Student 2 felt comfortable with her and opened up to her about a number of personal issues, including her issues with her mother and her issues with boys. She confirmed that Student 2 had left home on more than one occasion. Ms. Story testified that she had also relayed some of this information to Ms. Fletcher, the head of the [XXX]department, to ensure that she was handling the situation appropriately. Ms. Story recorded notes of some of her interactions with Student 2 (see Exhibit 31) and she had sent emails to some of Student 2’s teachers to share necessary information (see Exhibit 32).

The Member testified that he had learned about some of Student 2’s personal issues because Ms. Davidson had brought them up at one of the [XXX]department’s lunch meetings. The Member testified that, in October or November 2011, he had learned that Student 2’s grades were falling, that there was a drastic decrease in her attendance, that she had recently left home, and that she may have been having problems with her mother. The Member testified that it was it was normal for [XXX]to share information with each other about students’ personal issues that might have an effect on their schooling, in order to widen the support net available to students. He noted that the Ministry of Education mandated [XXX]to share such information with other[XXX]. He also testified that department representatives who attended Student Success meetings would report student issues back to their departments.

During cross-examination, the Member acknowledged that he did not suggest that Ms. Davidson re-engage with Student 2 regarding the student’s issues with her mother and the fact that she had left home. He also did not suggest that Student 2’s issues be addressed at a Student Success meeting. According to the Member, it was troubling but not surprising when students at the School left home, which he described as nearly a weekly occurrence.

With respect to the sharing of students’ personal information between, the Member maintained, during cross-examination, that he was required to share this information within the [XXX]department despite the Ministry of Education policy that states that student information was to remain confidential “except in circumstances in which freedom of information legislation or other legislation requires or permits [XXX]to release information to specified individuals” (see Exhibit 27 at page 22). The Member claimed that the Ministry of Education has released a more important document that allows information to be shared between[XXX], but this document was not provided to the Committee.

Ms. Fletcher’s evidence contradicted some of the Member’s evidence described above. First, she testified that it was not a common occurrence for students at the School to leave their homes. Second, she testified that the [XXX]department ate lunch together on a daily basis, but she did not characterize these lunches as meetings. She testified that these lunches were informal and were an opportunity for the staff to socialize with each other. Ms. Fletcher noted that [XXX]issues were not typically discussed at these lunches. Third, with respect to information sharing, Ms. Fletcher (the department [XXX] at the time) testified that information discussed at Student Success meetings was not reported back to the [XXX]department unless specific action was required by a particular[XXX], who would then be provided with the relevant information. Essentially, Ms. Fletcher testified that information sharing between [XXX]was less routine than the Member had described.

Committee’s factual findings in relation to Student 2’s [XXX]history and information sharing within the [XXX]department

While the evidence described above may provide some background or context, it is not directly relevant to the allegations contained in the Notice of Hearing. The Committee will therefore only briefly address this evidence, as it further calls into question the Member’s credibility. It will not make factual findings regarding Student 2’s personal history.

The Member’s evidence that information sharing within the [XXX]department was a common practice, and one that was mandated by the Ministry of Education, was contradicted by the evidence of Ms. Fletcher (the [XXX] of the [XXX]department and a witness for the defence). The Committee is concerned that even when the Member was brought to a Ministry of Education policy that directly contradicted his evidence (see Exhibit 27 at page 22), the Member refused to back down from his position that information sharing was a common practice among[XXX]. The Committee also believes that the Member took advantage of personal information that he had learned inappropriately, “through the grapevine”, about Student 2 and that he abused his position of trust and authority. Knowing what he knew about Student 2, the Member should not have engaged in the type of conversation that he did with her.

2. Was the Member’s office door open or closed during the Incident?

The Committee heard contradictory evidence from Student 2, Principal Grdovic, the Member, Ms. Fletcher, and Ms. Story with respect to whether the door to the Member’s office was open or closed during the Incident.

Student 2 testified that the door to the Member’s office was closed during the Incident.

Principal Grdovic testified that Student 2 consistently told her that the door to the Member’s office was closed during the Incident, when the principal interviewed Student 2 on December 7, 2011. Principal Grdovic acknowledged that if the Member’s door were open during the Incident, others in the [XXX]department might have been able to hear what was being said in his office, depending how loud the conversation was. She further acknowledged that a student sitting in the Member’s office with the door open might be visible to others in the [XXX]department (see Exhibit 11). The principal agreed with Member’s Counsel that if the Member’s door were actually open during the Incident, that fact might have impacted her investigation of the Incident.

The Member testified that the door to his office was open during the alleged Incident and he noted that the general policy was that [XXX]held open-door meetings with students, unless a request was made to close the door for privacy or safety reasons.

During cross-examination, however, the Member agreed with a series of statements that College Counsel put to him with respect to privacy and confidentiality. He agreed that [XXX]meetings need to have some semblance of privacy in order for students to feel comfortable opening up to the[XXX]. He also agreed that the [XXX]department is in a separate area of the School (which adds an additional layer of privacy) and that it is more private than regular classrooms. He further agreed that [XXX]offices have doors on them and that the glass is frosted, unlike the offices of other teachers. He acknowledged that these are some of the ways in which the [XXX]department tries to maintain students’ expectations of privacy.

Ms. Fletcher corroborated the Member’s evidence that [XXX]meetings with students were generally held with the door open, unless a student requested otherwise. She noted that this was done for the [XXX]protection.

Ms. Story testified that, while she was in and out of the [XXX]office on November 29, 2011, she had seen the Member with Student 2 in his office. She testified that she was able to see them because the door to the Member’s office was open. As described above, however, there were credibility issues with Ms. Story’s evidence, which the Committee found to be biased and exaggerated.

Committee’s factual findings in relation to the Member’s door being open or closed during the Incident

The Committee finds that it is more likely than not that the door to the Member’s office was closed during the Incident. The only witnesses who were present for the entire Incident were Student 2 and the Member, and the Committee finds that Student 2’s evidence was more credible than the Member’s for the reasons set out above. Although others, including Ms. Story, Ms. Pokorski and Ms. Munro may have noticed that the door was open during the fleeting moments that they claimed to have witnessed, the Committee does not find that their evidence was credible (as set out above) and the Committee notes that their opportunities to observe the Incident were very limited.

The Committee recognizes Ms. Fletcher’s evidence that the [XXX]department’s general practice was to keep office doors open during [XXX]meetings, unless a student specifically requested that the door be closed. Nevertheless, the Committee is not persuaded that the Member’s door was open because of the policy in place. Just as the Member was not following proper policy when he made the comments that he did to Student 2, it is probable that he was not following the [XXX] open-door policy at the time of the Incident. It is more likely than not that the Member would have had his door closed at the time of the Incident, given the nature of the conversation that he had with Student 2. The Member, in fact, agreed that the [XXX]department was set up to allow for privacy so that students could feel comfortable opening up to[XXX].

3. The timing of the Incident

The Committee received contradictory evidence with respect to the timing of the Incident from Student 2, Principal Grdovic, the Member, Ms. Pokorski, and Ms. Munro. Student 2 testified that she could not recall the precise time that her November 29, 2011 meeting with the Member began, but she believed that it began at approximately 10:35 a.m. She did not agree with the suggestion of Member’s Counsel that the meeting took place from approximately 10:00 to 10:15 a.m., and that she skipped the rest of second period after leaving the Member’s office.

According to Student 2, the Incident ended shortly after she heard the lunch bell ring at 11:05 a.m. She was confident that this was the time that the Incident ended because she claims that her boyfriend called her at approximately 11:06 or 11:07 a.m. and picked her up for lunch. Student 2 testified that she had texted her boyfriend asking him to phone her so that she was able to remove herself from the uncomfortable encounter with the Member.

Principal Grdovic described the daily schedule at the School. She testified that there were four, 75-minute periods beginning at 8:30 a.m., with a lunch break from 11:05 to 11:55 a.m. The School also had a bell system to let students know when to switch classes. Principal Grdovic testified that teachers typically made announcements during lunch and that they were not allowed to make any announcements during class time without the principal’s permission, because it was disruptive.

Principal Grdovic testified that Student 2 reported to her that she was in the Member’s office until shortly after the lunch bell rang on November 29, 2011. The Member, however, gave Principal Grdovic a different timeline.

When Principal Grdovic met informally with the Member in early December 2011 to discuss the alleged Incident, the Member told her that he had met with Student 2 after the [XXX] presentation. The presentation had taken place during first period. During the Member’s December 21, 2011 interview with the Board, he stated that his November 29, 2011 meeting with Student 2 lasted between 10 and 15 minutes. The Member told Principal Grdovic that Student 2 was released to return to class at approximately 10:20 or 10:25 a.m.

Principal Grdovic further testified that the Member indicated that he had made an announcement in the middle of second period, which the principal found to be implausible because she did not allow announcements to be made during class time, and she had not given the Member permission to make this announcement. The principal acknowledged that her notes from the December 21, 2011 meeting do not indicate that the Member said that he had made a mid-period announcement (see Exhibit 5), but Principal Grdovic maintained that she recalled him saying that.

Principal Grdovic testified that she investigated the timing of the alleged Incident by checking the [XXX]department’s appointment logs. When she originally checked the logs (after the complaint was made on December 5, 2011), Student 2’s name was not entered for an appointment on November 29, 2011. The principal subsequently re-checked the logs and found that the student’s name had been added to the logs beside the 10:15 a.m. time slot. When Principal Grdovic checked the logs a third time (before the Member’s interview with the Board on December 21, 2011), an additional notation appeared in the space between Student 2’s name and the shaded area of the logs that is blocked off for the lunch period, indicating the following: “not scheduled – came right after [XXX]presentation” (see Exhibit 34). Based on this information, Principal Grdovic concluded that the Member was with Student 2 until the end of second period on November 29, 2011. The principal questioned the Member’s timeline, which to her seemed to be speculative and inconsistent.

The Member testified that he and Student 2 left the [XXX]after the [XXX]presentation at approximately 10 a.m., and that it did not take them long to get to his office. According to the Member’s timeline, his meeting with Student 2 on November 29, 2011 lasted no more than 15 or 20 minutes. The Member claimed that he ended the meeting by telling her that she should get back to her second period class. He testified that he wrote a note to Student 2’s teacher indicating that she was with him until approximately 10:20 a.m.

The Member further testified that he left his office at approximately 10:30 or 10:35 a.m. because he needed to make arrangements for another presentation that was scheduled to take place during third period. The Member presented phone records to show that his wife called him twice at 10:35 and 10:36 a.m., and that he missed the calls (see Exhibit 22). He testified that he would have picked up the phone if he were in his office at the time. The Member also claimed that he made an announcement at approximately 10:55 or 11:00 a.m. about the third period presentation (and that he was therefore not in his office at that time).

Ms. Pokorski, the [XXX]secretary, gave evidence with respect to the timeline of the alleged Incident. She testified that she had entered Student 2’s name for an appointment at 10:15 a.m. on November 29, 2011 (see Exhibit 33), because that was the approximate time that the student arrived to the office with the Member. Ms. Pokorski indicated that it was important to keep a record of when students were in [XXX]meetings because other staff would sometimes enquire about students’ whereabouts if they had missed a class. She further testified that she went to the Member’s office when it was getting close to the lunch period in order to remind him to prepare for the third period presentation. Ms. Pokorski testified that the Member and Student 2 were still in his office at that time.

Ms. Munro briefly testified with respect to the timeline of the alleged Incident. During second period on November 29, 2011, she was in her office, which shared a wall with the Member’s office (see Exhibit 11). Ms. Munro saw the Member return to his office after the [XXX]presentation and she could hear him speaking with a student, although she could not hear the content of their conversation. She testified that Student 2 was in the Member’s office from the time that they returned from the presentation until around the beginning of the lunch period.

Committee’s factual findings in relation to the timing of the Incident

The Committee finds that the Incident more likely than not took place during second period on November 29, 2011, from approximately 10:15 a.m. until shortly after the lunch bell rang at 11:05 a.m. The Committee does not accept the Member’s timeline, which is inconsistent with Student 2 and Principal Grdovic’s timeline and also that of Ms. Pokorski and Ms. Munro, who were both witnesses for the defence.

The Committee received documentary evidence in the form of the appointment logs (see Exhibits 33 and 34) indicating that Student 2 was with the Member from 10:15 a.m. until lunch period at 11:05 a.m. Student 2 also testified that she was with the Member until shortly after the lunch period began, and this evidence was corroborated by two witnesses for the defence.

The Committee does not accept the Member’s explanation that he must have been out of his office by approximately 10:35 a.m. because he missed two phone calls from his wife. It is just as likely that he missed his wife’s phone calls because he was in the middle of his meeting with Student 2 and did not pick up the phone. There are any number of reasons why the Member would not have answered his wife’s phone call at 10:35 and 10:36 a.m., and it is unlikely that he missed her call because he was out of the office, as he claimed. The missed calls are determinative of nothing.

The Member’s claim that he made an announcement at approximately 10:55 or 11:00 a.m. is also implausible. Principal Grdovic testified that teachers were not allowed to make announcements during class time without her permission, and that she did not give the Member permission to make a mid-period announcement on November 29, 2011.

Given the content of the meeting on November 29, 2011 and the issues that were discussed, the Committee also finds it improbable that the meeting only lasted approximately 15 minutes, as the Member suggested. It is more likely that the meeting lasted approximately 45 minutes as the College’s timeline would suggest.

The Committee recognizes the irregularities raised by College Counsel with respect to Exhibit 33 and 34 (the copies of the appointment logs), and finds that there was probably some altering of the logs as College Counsel suggested and as set out above.

As noted above, the Member’s inconsistent evidence regarding the timing of the Incident raises serious doubts as to his credibility. His timeline was even inconsistent with that of his own witnesses, who the Committee believes were attempting to support his position.

4. The “beautiful” comment

The Committee heard evidence from Student 2, Principal Grdovic, the Member, and Mr. Warda with respect to the Member’s comment to Student 2 that she was beautiful. Student 2 testified that the Member told her that she was beautiful during the Incident. She indicated that the Member had said that her mother was a beautiful woman and that he was not surprised that she was her mother’s daughter. Student 2 disagreed with the suggestion that the Member told her that she was beautiful in the context of a broader conversation about how beauty is defined, or to make her feel better about her self-image.

Principal Grdovic testified that she learned from Student 2 that the Member had called her beautiful. When the principal discussed this comment with the Member, he told her that he did not intend for the comment to be interpreted as sexual or inappropriate.

The Member admitted that he told Student 2 that she was beautiful, but he explained that the comment was made in a different context than that described by the student. According to the Member, Student 2 told him that she thought that she was ugly, to which he responded that she was a beautiful girl with a lot going for her. According to the Member, he was not speaking about physical beauty, but he was saying that Student 2 was a beautiful person.

Mr. Warda testified that the topic of beauty was addressed during the Member’s December 21, 2011 interview with the Board (see Exhibit 37 at pages 9-10). During cross-examination, Mr. Warda agreed with College Counsel that the Member had said something to the effect that it drove him crazy that he could call a young man handsome but that he could not make the same kind of comment to a young woman.

Committee’s factual findings in relation to the “beautiful” comment

The Committee finds that the Member told Student 2 that she was beautiful, as alleged in paragraph 6(a) of the Notice of Hearing. The Member admitted that he made this comment. With respect to the Member’s attempt to contextualize this comment, the Committee is not persuaded that the comment was a harmless attempt to boost Student 2’s self-esteem.

Having reviewed the totality of the evidence and given the Member’s credibility issues as set out above, the Committee finds that the Member probably did not make the “beautiful” comment in the context that he claimed. The Committee does not believe that the comment was a harmless attempt to boost Student 2’s self-esteem or that the Member was not speaking about physical beauty when he made the comment. The “beautiful” comment was part of a series of inappropriate comments relating to Student 2’s physical appearance. The Member used rating scales to describe Student 2’s appearance and he commented that he had to try hard not to look at her “butt” when she was doing [XXX].

Even if the Committee accepted the Member’s attempt to contextualize the “beautiful” comment (which it does not), the Committee would have still found that the Member made the comment and that it was inappropriate in the circumstances. The Member knew that Student 2 was a vulnerable student, and that this type of comment could be easily misinterpreted (particularly when it comes from a teacher to a student). At best, the Member failed to respect appropriate professional boundaries by calling Student 2 beautiful and demonstrated poor professional judgment; at worst, the Member made an inappropriate comment to a student which, in combination with the other comments that he made, had a sexual undertone.

5. The “10” rating comments

The Committee heard contradictory evidence from Student 2, Principal Grdovic, the Member, and Mr. Warda with respect to the allegations particularized at paragraphs 6(b) and 6(c) of the Notice of Hearing, which relate to Student 2 being rated as a “10”. Student 2 testified that, during the November 29, 2011 meeting, the Member told her that she was beautiful and that if he or his friends saw her walking down the street, they would rate her as a “10”. Student 2 disagreed with the suggestion that the Member had asked her to rate herself from 1 to 10 in terms of intelligence, appearance, and how much she liked herself, and that she rated herself as a “4”.

Principal Grdovic gave evidence with respect to what she had learned about the “10” rating comments from Student 2 and from the Member. The principal confirmed that Student 2 told her, during the December 7, 2011 interview, that the Member had commented that he and his friends would rate her as a “10”. Principal Grdovic further testified that when she spoke to the Member about this allegation, he denied it and claimed that Student 2 rated herself as a “4” to which he responded that he thought she was a “10”.

The Member denied the particularized allegations set out at paragraphs 6(b) and 6(c) of the Notice of Hearing. He testified that it was common practice among [XXX]to use rating scales to gauge how people were feeling about themselves. According to the Member, on November 29, 2011, he asked Student 2 how much she liked herself on a scale from 1 to 10, and she rated herself as a “4”. He denied having ever told Student 2 that he or his friends would rate her as a “10” if they saw her walking down the street.

Mr. Warda gave evidence regarding the “10” rating comments, based on the Member’s responses during his interview with the Board on December 21, 2011. According to Mr. Warda, when the Member was asked about these alleged comments during his interview with the Board, he responded that he had asked Student 2 to rate herself in a holistic way. The Member indicated that Student 2 rated herself as a “4” to which he responded by saying something along the lines of “I bet if we asked people who knew you, they would rate you a 10.” Mr. Warda testified that the Member claimed never to have rated Student 2 as a “10”. The Committee, however, gave little weight to Mr. Warda’s evidence for the reasons set out above.

Committee’s factual findings in relation to the “10” rating comments

The Committee finds that it is more likely than not that the Member made the comments alleged at paragraphs 6(b) and 6(c) of the Notice of Hearing. The Member inappropriately used rating scales when discussing Student 2’s body image. The Committee finds that Student 2’s version of events is more credible than the Member’s version of events. In her December 7, 2011 interview with Principal Grdovic, Student 2 reported that she liked Mr. Shaikh but that his statement that she was a “10” sounded like a pickup line that a teenager would say (see Exhibit 4). This evidence is consistent with Student 2’s later testimony regarding the “10” rating comments, and the Committee believes that her interpretation of the Member’s comments is a reasonable one, given the circumstances.

The Committee does not accept the Member’s explanation regarding the “10” rating comments. The Member’s evidence in this regard was inconsistent and lacked credibility. The Member denied having made the comments, but when pushed on the issue, he admitted to saying something very similar to the “10” rating comments. For instance, during the Board’s interview of the Member on December 21, 2011, the Member initially denied having rated her as a “10” and he denied saying that his friends would have rated her as a “10” (see Exhibit 5 at page 6). However, when questioned further, the Member stated that he had asked Student 2 to rate herself out of ten with respect to different qualities, including intelligence and that she rated herself as a “4”, to which he responded “I think you’re a 10. Why don’t you?” (see Exhibit 5 at page 6). After initially denying the allegations at his Board interview, the Member conceded that he “might have said, I think you could be a 10” (see Exhibit 5 at page 6).

Similarly, Exhibit 26 at pages 6-7 (which is a letter from Member’s Counsel to a College investigator responding to the complaint that was brought against the Member) indicates that the Member denies having made the “10” rating comments, and states that he was simply asking Student 2 to rate her sense of self-worth on a scale from 1 to 10. The Member testified that it was common practice for [XXX]to use rating scales to assess how students were feeling about themselves.

Page 7 of Exhibit 26, however, indicates that the Member was not only asking Student 2 to consider intelligence and personality, but “beauty” as well. It further shows that the Member asked Student 2 why she would not rate herself as a “10”, and that he said that if he “asked any of [her] friends walking around out there, they would rate [her] a 10” (see Exhibit 26 at page 7). During cross-examination, the Member was taken to these passages of Exhibit 26 and he admitted that the passages accurately reflected what he said to Student 2, even if they were not quoted verbatim.

The Committee finds that the Member’s explanations regarding the “10” rating comments were continually evolving. He initially denied having made the statements, but he then admitted having made statements that were very similar. His explanations were also inconsistent and implausible. On the one hand, the Member explained that he had simply asked Student 2 to rate her self-worth (as he claimed was a common practice for[XXX]) and that he used rating scales holistically and not to assess physical appearance. On the other hand, the Member admitted that he told Student 2 that “her friends walking around out there” would rate her as a 0. If the conversation between the Member and Student 2 was about self-worth and inner beauty as opposed to physical appearance, it would not make sense for the Member to engage in a discussion of what others “walking around out there” might think when they looked at the student. An onlooker would not be rating inner beauty, but rather physical appearance.

Accordingly, based on the totality of the evidence and as a result of the Member’s inconsistent and implausible version of events, the Committee finds it more likely than not that the Member made the “10” rating comments to Student 2 as alleged at paragraphs 6(b) and 6(c) of the Notice of Hearing. Given the topics of conversation during the Incident, which the Committee believes involved Student 2’s physical appearance, the Committee finds that it is probable that the Member made the comments as alleged.

6. The “butt” comment

The Committee heard contradictory evidence from Student 2, Principal Grdovic, the Member, and Mr. Warda with respect to the allegation contained at paragraph 6(d) of the Notice of Hearing that the Member said that he had to try hard not to look at Student 2’s “butt” while she was doing [XXX] during the [XXX]presentation. Student 2 testified that the Member said he had a hard time not staring at her “ass” while she was doing the [XXX] in front of the presenter.

Principal Grdovic testified with respect to what she had learned during her investigation about the alleged “butt” comment from Student 2, the student’s mother, and the Member. Student 2 and her mother had both told Principal Grdovic that the Member made the “butt” comment, as alleged at paragraph 6(d) of the Notice of Hearing. The principal testified that the Member denied having made this comment. When the Member provided the principal with his account of the alleged Incident on December 6, 2011, he told Principal Grdovic that he was actually watching the [XXX] presenter to ensure that the presenter was not looking at Student 2’s “butt”, but the Member could not recall whether he ever made a comment about this concern (see Exhibit 3).

Principal Grdovic further testified that the Member appeared to be very nervous during his December 21, 2011 interview with the Board and that his responses to her questions wavered and were “all over the place”. During cross-examination, the principal acknowledged that a meeting with the Board could be nerve-wracking for a teacher, but she maintained that the Member was nervous and that he had the support of a union representative at the meeting. Following her investigation into the Member’s alleged conduct, Principal Grdovic recorded a number of her questions and reflections stemming from the investigation (see Exhibit 7). Among other things, the principal questioned why the Member did not stop Student 2 from doing [XXX] if he were truly concerned that the [XXX]presenter was looking at her “butt”.

The Member denied having told Student 2 that he had to try hard not to look at her “butt” when she was doing [XXX] during the [XXX}presentation. The Member testified that, while Student 2 was doing [XXX], he looked at the presenter who seemed surprised that she was doing [XXX] in front of him. The Member noted, however, that the presenter was not doing anything inappropriate. He also acknowledged, during cross-examination, that the presenter looked away while Student 2 was doing [XXX].

College Counsel took the Member to Exhibit 26 during cross-examination, which is a letter from Member’s Counsel to a College investigator, responding to the complaint that was brought against the Member on September 3, 2012. In this letter, the following explanation is provided in support of the Member’s denial regarding the “butt” comment:

The discussions about [XXX] arose when the Member stated that he was a little surprised that she had dropped to the ground (of her own volition) in the middle of the [XXX]and did the [XXX] in front of the recruiter from the [XXX]following her raising with the recruiter the issue of women being disrespected, objectified, and having a horrible time in the[XXX]. The Member commented that it was odd timing (based on the subject matter she raised with him) and that, “I had to look to make sure that the guy wasn’t checking you out.” There was no reference to her “butt” (see Exhibit 26 at page 7) [Underlining added; italics in original].

College Counsel thoroughly cross-examined the Member about this issue. According to the Member, the underlined sentence was an attempt to explain an inference that Student 2 made for her own purposes; it was not a direct quotation that he had said to Student 2. College Counsel then took the Member to a number of other passages in Exhibit 26 where the Member agreed that the quoted portions were accurate reflections of comments that he had made to Student 2 during the Incident. Nevertheless, the Member maintained that the sentence “I had to look to make sure that the guy wasn’t checking you out” was not an accurate reflection of what he had told Student 2. The Member claims that he would never use such juvenile language in a meeting with a student.

Mr. Warda gave evidence about the topic of the “butt” comment, which arose during the Member’s December 21, 2011 interview with the Board. According to Mr. Warda, Principal Grdovic asked the Member about the alleged “butt” comment and the Member responded that he was concerned that the presenter was checking out Student 2 and that he (the Member) was watching the presenter to see if he was checking out the student (see Exhibit 37 at page 12).

During cross-examination, Mr. Warda confirmed that, during the December 21, 2011 interview with the Board, the Member said that he was concerned that the presenter was checking out Student 2. Mr. Warda also acknowledged that when the issue of the alleged “butt” comment was raised during the December 21, 2011 interview, the Member did not tell the Board that he had no idea what they were talking about. College Counsel attempted several times to elicit evidence from Mr. Warda that the Member’s response “I had to look to make sure that the guy wasn’t checking you out” was something that the Member told the Board (on December 21, 2011) that he had said to Student 2 on November 29, 2011, and not something that he was just thinking. Mr. Warda, however, was confused by this line of questioning and did not know whether the Member had made that comment to Student 2 or if he just thought it. After being asked the question in a variety of ways, Mr. Warda maintained that, during the December 21, 2011 interview, he simply recorded what the Member said during the interview.

Committee’s findings with respect to the “butt” comment

The Committee finds that it is more likely than not that the Member made the “butt” comment as alleged. Student 2’s version of events in this regard is more credible than that of the Member, and the Member’s explanation is inconsistent and implausible.

Principal Grdovic testified that the Member explained to her that he did not make the “butt” comment but that he was actually watching the [XXX] presenter to ensure that the presenter was not looking at Student 2’s “butt”. This explanation is also recorded in an October 30, 2012 letter from Member’s Counsel to the College investigator in this matter, responding to the complaint against the Member (see Exhibit 26), as well as in a number of other documents (see for example Exhibit 3 at page 3 and Exhibit 5 at pages 1 and 6). The Committee finds that it is more likely than not that this is the explanation that the Member provided when denying that he made the alleged “butt” comment.

However, at the hearing, the Member stated that he did not actually say “I had to look to make sure that the guy wasn’t checking you out” (see Exhibit 26 at page 7), but that this was an attempt to explain an inference that Student 2 had made for her own purposes. The Committee believes that the Member attempted to change his explanation during his testimony (when he realized that it was implausible to pin any concerns on the [XXX]presenter), and that his evolving and inconsistent testimony diminishes his credibility in respect to this allegation.

The Committee does not find any of the Member’s explanations regarding the “butt” comment to be credible. The Member admitted that the [XXX]presenter was not acting the least bit inappropriate. He also acknowledged that the [XXX]presenter looked away while Student 2 was doing [XXX]. The Member’s explanation that he needed to ensure that the presenter was not checking out Student 2 is therefore unreasonable and incredible.

Accordingly, the Committee prefers Student 2’s version of events and finds that it is more likely than not that the Member made the inappropriate comment set out at paragraph 6(d) of the Notice of Hearing. As set out above, the Committee does not believe that Student 2’s evidence regarding the “butt” comment lacked credibility because she used the words “butt” and “ass” interchangeably when describing the comment. This minor language inconsistency is insignificant; particularly, when compared to the Member’s ever-evolving and implausible explanations.

7. Student 2 felt uncomfortable during the Incident

The Committee heard contradictory evidence with respect to the tenor of the November 29, 2011 Incident from Student 2, Principal Grdovic, the Member, and Mr. Warda. Student 2 testified that the Member made her feel uncomfortable during the Incident and she felt that this encounter was inappropriate (see, for example, Book of Transcript Excerpts of the Member (March 29, 2016) at Tab 2, page 104). She testified that the Member engaged her in a discussion about young women with self-image issues who tend to participate in self-destructive behaviour and to be overly promiscuous. Student 2 disagreed with the suggestion that the Member raised these issues to help her with her self-image, and she testified that she did not have self-image issues. She indicated that the Member’s comments made her feel nervous. Student 2 added that the Member was sitting near her at the time of the Incident, with his legs somewhat opened towards her, and he was leaning in.

Principal Grdovic testified that Student 2 reported to her that the Member had made the above-mentioned comments. The principal believed that it was inappropriate for a teacher to make these sorts of comments to students. According to Principal Grdovic, Student 2 had reported that she felt nervous during the Incident but that the Member did not touch her (see Exhibit 4).

The Member testified that his November 29, 2011 meeting with Student 2 ended positively and was not awkward or inappropriate. He acknowledged that he discussed the correlation between low self-esteem and self-destructive behaviour (including gambling, drinking and sex addiction) with Student 2, but he explained that this was in the context of trying to work on her self-esteem with her.

Based on his notes from the Member’s December 21, 2011 interview with the Board, Mr. Warda corroborated the Member’s evidence that the November 29, 2011 meeting with Student 2 was positive, happy and not awkward, and that the student was not uncomfortable during the meeting. Mr. Warda also indicated that the Member had explained that the discussion about self-destructive behaviour among young women was in the context of a discussion with Student 2 about self-esteem. The Committee, however, placed little weight on Mr. Warda’s evidence for the reasons set out above.

Committee’s factual findings in relation to the tenor of the Incident

The Committee finds that it is more likely than not that Student 2 felt uncomfortable during the November 29, 2011 Incident. As set out above, the Committee found Student 2 to be a credible witness.

Both parties agree that there was some discussion about the relationship between low self-esteem in young women and sexual promiscuity and other self-destructive behaviour. Regardless of the Member’s intention in raising these issues, it is reasonable to believe that a female, adolescent student might feel uncomfortable in a situation where a male teacher raises these issues. The Member’s comments to Student 2 were inappropriate and made the student feel nervous, which is understandable given the circumstances.

The Committee placed significant weight on Exhibit 4 when determining that the Member had made Student 2 feel uncomfortable during the Incident. Exhibit 4 contains Principal Grdovic’s notes from her December 7 interview with Student 2. Among other comments, the Committee highlights that Student 2 reported the following:

• “I had a weird feeling in my stomach” (Exhibit 4 at page 2);

• “He was sitting close to me” (Exhibit 4 at page 2);

• “He didn’t touch me” (Exhibit 4 at page 2);

• “I was sitting with my legs crossed” (Exhibit 4 at page 2); and

• “What’s going to happen next time I am going to be in his office?” (Exhibit 4 at page 3).

These comments were consistent with Student 2’s testimony during the hearing and indicate that Student 2 felt nervous and uncomfortable during the Incident on November 29, 2011. Although the Member never touched Student 2, the fact that this possibility even crossed her mind indicates that she was placed in an uncomfortable position.

8. Issues regarding the School administration’s investigation

The Committee heard evidence with respect to the investigation conducted by Principal Grdovic. In particular, Principal Grdovic and the Member testified with respect to the witnesses that the principal interviewed as part of her investigation. Principal Grdovic testified that she only interviewed the Member and Student 2 during her investigation into the alleged Incident. She indicated that she had asked both the Member and the student if there were any other witnesses that she should interview, but she was not given any additional names.

During cross-examination, Principal Grdovic acknowledged that there was no written record indicating that she had asked the Member to compile a list of potential witnesses. Although the principal conceded that she never asked the Member for a list of potential witnesses during his interview with the Board on December 21, 2011, Principal Grdovic maintained that she had asked the Member for a list of witnesses when she met with him on December 6, 2011, even if this was not recorded in her notes. The principal further acknowledged that she did not interview any other [XXX]as part of her investigation, even though some of them may have had contact with Student 2 prior to the Incident or in the days following the Incident. She had only asked Ms. Pokorski one or two questions about the [XXX]appointment book.

During re-examination, Principal Grdovic noted that neither the Member nor his union representative, Mr. Warda, volunteered any names of potential witnesses at any point during the investigation into the Member’s alleged conduct.

The Member testified that he was never asked by School administration or the Board to compile a list of potential witnesses at any point during the investigation into his alleged conduct. According to the Member, the only time that he was asked for a list of potential witnesses was when the College informed him that his conduct was being investigated on September 3, 2012 (see Exhibit 24). After receiving this information from the College, the Member reached out to Ms. Story, Ms. Munro, Ms. Fletcher, Ms. Pokorski and Ms. Davidson with respect to the allegations against him.

During his examination in chief, the Member testified that he spoke to Ms. Pokorski, Ms. Munro and Ms. Davidson briefly after his November 29, 2011 meeting with Student 2 in order to relay some information about that meeting. Neither Ms. Pokorski nor Ms. Munro testified that they had debriefed with the Member following the alleged Incident (and Ms. Davidson was not called as a witness).

During cross-examination, the Member acknowledged that, during the approximately nine months between November 29, 2011 (the day of the alleged Incident) and September 3, 2012, he did not contact any potential witnesses to see if they recalled anything about the alleged Incident. The Member further agreed with College Counsel that, but for the allegations that were brought against him leading to these proceedings, he believed that his November 29, 2011 encounter with Student 2 would have been an otherwise non-memorable event. Although the Member maintained that the encounter was made memorable once the allegations were brought, he conceded that the alleged Incident was not publicized at the time, he did not reach out to colleagues to discuss the alleged Incident, and Student 2 had left the School by January 2012 for the remainder of the academic year.

Committee’s factual findings in relation to the School administration’s investigation

There is insufficient evidence to indicate that Principal Grdovic’s investigation was compromised, and the Committee will not make any findings in this regard. The Member’s conduct is under examination, and not that of Principal Grdovic.

The Committee recognizes that Principal Grdovic only interviewed Student 2 and the Member as part of her investigation. This was not improper, given the information that she was provided at the time. If the Member believed that there were other important witnesses in this matter, he had ample opportunity to bring this to the principal’s attention. He did not do so and neither did his union representative.

In any case, Ms. Pokorski, Ms. Fletcher, Ms. Munro and Ms. Story had such limited involvement and virtually no opportunity to observe the Incident itself (as described above), that they would not likely have contributed anything of value to Principal Grdovic’s investigation. They provided no credible exculpatory evidence in this matter, and the Committee does not believe that this was due to fading memories or to the passage of time. These individuals simply did not witness any significant portion of the events in question. Moreover, the Committee believes that these potential witnesses were biased in favour of the Member (as described above) and that the principal’s investigation was not negatively impacted due to their lack of involvement.

Legal conclusions

Based on the factual findings set out above, the Committee finds that the Member’s conduct gives rise to 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(7), 1(7.2), 1(15), 1(18) and 1(19). The College did not provide sufficient evidence to prove that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

1(5): The College did not prove that the Member failed to maintain the standards of the profession

The Committee does not find that the Member failed to maintain the standards of the profession contrary to Ontario Regulation 437/97, subsection 1(5), because the College has not provided the Committee with sufficient evidence to establish the standards against which the Member’s conduct is to be measured. The Committee accepts the advice of independent legal counsel that the Committee cannot create the standards of the profession and that it cannot rely on its own expertise to determine standards, unless the conduct is so egregious that an expert is not required to prove the standards of the profession.

While the Member’s conduct in this matter is unacceptable, it is not so egregious (as for example a case involving the sexual assault of students) that the Committee can conclude that the standards of the profession have clearly been breached. Without having received sufficient guidance or evidence as to what the applicable standards are, the Committee does not conclude that the Member has failed to maintain the standards of the profession.

1(7): The Member abused a student verbally

The Committee finds that the Member abused Student 2 verbally and that his conduct was therefore in breach of Ontnario Regulation 437/97, subsection 1(7). As set out above, the Committee finds that the Member made the comments alleged at paragraphs 6(a)-(d) of the Notice of Hearing. The Member made these inappropriate comments to Student 2. The Committee finds that the comments had a sexual undertone given the combination of the comments and the circumstances in which they were made. The Committee does not believe that the Member was simply complimenting the student or trying to boost her self-esteem. The comments related to the adolescent female student’s physical appearance, they were disrespectful and objectifying, and they made the student feel uncomfortable. It is unacceptable that a [XXX] in a position of trust and authority would direct such comments to a student. The Committee therefore concludes that the comments were verbally abusive.

1(7.2): The Member abused a student psychologically or emotionally

The Committee finds that the Member psychologically or emotionally abused Student 2 and that his conduct was therefore in breach of Ontario Regulation 437/97, subsection 1(7.2). As set out above, the Committee found that the Member made Student 2 feel vulnerable and uncomfortable during the Incident; the Committee received testimony from Student 2 that she no longer felt safe at the School as a result of the Member’s conduct, and that she was [XXX]for the second semester of grade [XXX] (following the Incident); and, the Committee learned that Student 2 was worried that she would be singled out as a result of the complaint she made against the Member, who was a popular teacher. Accordingly, the Committee finds that the Member’s conduct was psychologically or emotionally abusive.

Teachers are expected to provide a safe learning environment for students. This expectation is heightened for [XXX]who are trusted to address sensitive, personal issues with students in a respectful and professional manner. The Member failed in this regard. His conduct was uncalled for and it was emotionally abusive. High school can be a difficult enough experience for many students, without receiving a series of inappropriate comments from a teacher. The Member was well-aware, even before the Incident occurred, that as a [XXX]-year old female student with a previous [XXX] history, Student 2 was vulnerable. He never should have put Student 2 in the uncomfortable position that he did.

1(15), 1(18) and 1(19): The Member failed to comply with the Education Act or the Regulations made under that Act; his acts were disgraceful, dishonourable or unprofessional; and he engaged in conduct unbecoming a member

Based on its factual findings set out above, the Committee finds that the Member’s conduct was in breach of subsections 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Committee determined that the Member made a series of inappropriate comments with a sexual undertone to Student 2, as set out at paragraphs 6(a)-(d) of the Notice of Hearing. In making these inappropriate comments to Student 2, the Member also violated the Board’s Code of Conduct for Employees, which provides the following:

Board employees are expected to conduct themselves professionally and personally in a manner which at all times holds paramount the safety, self-respect and dignity of students, all employees, members of the Board and the community at large, and which does not bring disrepute to the Board, or adversely affect an employee’s employment relationship with the Board (see Exhibit 8 at page 2, which sets out Board Policy HR-5.3).

The Member abused his position of trust and authority as a [XXX]by making the comments that he did to Student 2 and by making her feel uncomfortable. He was aware that she was a vulnerable student, but this did not prevent him from making the types of comments that he did. The Member’s conduct had such a profound, negative impact on Student 2 that she left the School after her first semester of grade {XXX] (in January 2012) and was [XXX] for the remainder of the academic year because she did not feel comfortable returning to the [XXX]. She subsequently transferred to a different school for grade[XXX]. Rather than ensuring that the School was a safe space for Student 2, the Member’s conduct had the opposite effect. He changed the course of her [XXX] education and stunted her development at the School.

The Committee agrees entirely with Principal Grdovic’s assessment that the Member exercised poor judgment, bad decision-making, and unprofessional conduct during the Incident and it agrees with Principal Grdovic’s concerns set out in Exhibit 7. As Principal Grdovic noted in her letter to the Member dated January 20, 2012, the Member made a number of “unsolicited, unwelcome and inappropriate comments” to Student 2 (see Exhibit 8). Moreover, the Member’s conduct caused distress to one of the very students that he was obligated to protect in “an educational environment where [he was] required to act as a role model for students, and where students must feel safe and secure in [his] charge” (see Exhibit 8).

The requirement to act as role model is codified in subsection 264(1) of the Education Act. By making the comments set out above, the Committee finds that the Member failed to comply with subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. In addition, the Committee finds that members of the profession would consider that the comments made by the Member to Student 2 in the circumstances set out above were disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. In addition, by making comments with a sexual undertone to a [XXX]-year-old student, the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97.

Members of the teaching profession are expected to be positive role models for students, to make them feel comfortable at school so that students are encouraged to learn and to achieve, and to interact with students in a professional manner at all times. The Member’s comments to Student 2 were insensitive, demeaning and unprofessional. This sort of conduct is not tolerated by the teaching profession.

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: December 20, 2016

______________________________ Marie-Claude Yaacov

Chair, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Ravi Vethamany, OCT

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.