Ontario College of Teachers v. Clements, 2016 ONOCT 11

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Clements, 2016 ONOCT 11

Date: 2016-03-04

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

Gerard Francis Clements, a member of the Ontario College of Teachers.

PANEL: Ravi Vethamany, OCT, Chair

Sara Nouini, OCT

Tom Potter

BETWEEN: ) Eli Mogil,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,

) Law Clerk

– and – )

GERARD FRANCIS CLEMENTS ) Gerard Francis Clements,

(CERTIFICATE #101719) ) Self-represented )

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: February 29, 2016

DECISION, REASONS FOR DECISION, AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 29, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated January 20, 2015 was served on Gerard Francis Clements (the “Member”), requesting his attendance before the Committee on February 17, 2015 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for February 29, 2016.

The Member was not in attendance for the hearing and he did not have legal representation. In fairness to the Member, the Committee waited 15 minutes after the opening of the hearing to allow the Member extra time to arrive at the hearing. The Member did not attend.

Counsel for the College submitted an Affidavit of Duane Crocker (Exhibit 2) sworn on February 26, 2016, to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Mr. Crocker, a law clerk with McCarthy Tétrault LLP, outlines his communications with the Member and provides proof of service of all required documents. Based on this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought. The Committee therefore heard this matter in the absence of the Member.

OVERVIEW

These proceedings arose as a result of several incidents involving the Member in 2010 and 2011. At all material times, the Member was a [XXX] teacher at [XXX] School in Mississauga, Ontario (the “School”).

The Member’s conduct falls into three general categories: 1) inappropriate comments made to students; 2) inappropriate physical contact with a student; and 3) inappropriate electronic communications with a student. In particular, the Member is first alleged to have made a number of insensitive and offensive comments to students. Second, the Member is alleged to have grabbed a student by her coat and angrily yelled at her (the “Coat Grabbing Incident”). Third, the Member is alleged to have initiated inappropriate electronic communications with a student via Facebook, in which he gave the student his telephone number and invited her to call him during the summer of 2011 (the “Facebook Incident”).

The Committee’s task is to determine whether the facts alleged in the Notice of Hearing have been proven on a balance of probabilities, and if so, whether they give rise to a finding of professional misconduct. For the reasons that follow, the Committee has determined that the Member is guilty of professional misconduct.

THE ALLEGATIONS

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

IT IS ALLEGED that Gerard Francis Clements is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

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

(f) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(g) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Gerard Francis Clements is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Board”) as a [XXX] teacher at [XXX] School in Mississauga, Ontario.

3. Student 1 was a male student, Student 2 was a female student, Student 3 was a male student, Student 4 was a female student and Student 5 was a female student and all were students of the School.

4. Person A was a [XXX] year old female.

5. On or about February 25, 2010, the Member told Student 1, “What are you, an idiot?”

6. In or about March 2010 the Member:

(a) spoke to Person A at her workplace and identified himself as a teacher at the School;

(b) attempted to establish a personal relationship with Person A;

(c) invited Person A to his apartment building; and

(d) asked Person A if she wanted to go out with him sometime.

7. In or about April or May 2010, the Member:

(a) told Student 2 that she should go back to her own country if she did not want to learn [XXX]; and

(b) told Student 3, a [XXX] student, to “shut up”.

8. During the 2010 – 2011 school year, the Member:

(a) called a student and/or students “stupid” and/or “retards”; and

(b) told a student and/or students that he wished he could “slap” a student and/or students in the face.

9. On or about January 13, 2011, the Member:

(a) grabbed Student 4 by the front of her coat; and

(b) yelled at Student 4 and angrily directed her to go to the office.

10. In or about July 23, 2011, the Member communicated with Student 5 on two occasions through Facebook including but not limited to:

(a) invited Student 5 to become his Facebook friend; and

(b) sent Student 5 his telephone number and invited Student 5 to contact him.

MEMBER’S PLEA

As the Member was not present, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.

THE EVIDENCE

The College called the following four witnesses, two of whom were students and two of whom were School administrators at all material times: Student 4 (as she is referred to in the Notice of Hearing); Student 5 (as she is referred to in the Notice of Hearing); Ms. Sarah Calvert (“Vice-Principal Calvert”); and Ms. Michelle McCann (“Principal McCann”).

The Committee finds that all four College witnesses were credible. They provided clear, cogent and convincing evidence about the Member’s conduct that they had observed or learned about. Their evidence was internally and externally consistent, and it was not overstated or exaggerated.

Student 4

Student 4 was [XXX] years old at the time of the hearing. The Member was one of her teachers at the School when she was in grades [XXX] and [XXX] Student 4 provided her account of the Coat Grabbing Incident, as alleged at paragraph 9, of the Notice of Hearing. She also testified about the Member’s insensitive and inappropriate comments that he made to her, as alleged at paragraph 7(a) of the Notice of Hearing. She explained how the Member’s comments made her feel as a recent Canadian immigrant of [XXX] descent. Student 4 also provided the Committee with her general impressions of the Member and she explained her concerns that stemmed from his intimidating and frightening behaviour.

Student 5

Student 5 was a [XXX]-year-old [XXX] school student at the time of the hearing. The Member was one of her teachers at the School when she was in grades [XXX] and part of grade [XXX]. Student 5 provided her account of the Facebook Incident, as alleged at paragraph 10 of the Notice of Hearing.

Vice-Principal Calvert

Vice-Principal Calvert’s career in education began in 1991 and she became a school administrator with the Board in 2000. At the time of the hearing, she was a principal at another school, but she was a vice-principal at the School at all material times. In addition to giving evidence about her general impressions of the Member, she provided specific evidence with respect to a number of the allegations contained in the Notice of Hearing. Her evidence was based on her direct observations of the Member’s conduct, and on reports or complaints that she had received from students and parents about the Member.

Principal McCann

Principal McCann’s career in education began in 1987 and she became a vice-principal in 2003. In 2007, she took on the role of principal at the School, and she was the School principal at all material times. Like Vice-Principal Calvert, Principal McCann gave evidence about her general impressions of the Member and she also provided specific evidence with respect to a number of the allegations contained in the Notice of Hearing. Principal McCann supported much of her testimony with contemporaneous notes, in the form of logs that she had kept regarding the Member’s conduct. She had the opportunity to observe the Member’s conduct in relation to some of the allegations contained in the Notice of Hearing, and she provided some evidence based on reports or complaints that she had received from students and parents about the Member.

In the reasons that follow, the Committee will highlight the key portions of the witnesses’ evidence in greater detail, to support its findings.

Evidence in relation to the Member’s health

During the course of the hearing, the Committee received some evidence relating to the Member’s health. In accordance with Rule 13.15 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, the Committee inquired as to whether any of the evidence that it received related to the Member’s capacity. The Committee notes that incapacity is defined at subsection 31(2) of the Act.

The Committee is satisfied that there are no incapacity issues at play in this matter. Although the Committee recognizes that the Member was on medical leave from September 1, 2011 until January 1, 2012 (see Exhibits 10 and 11), this medical leave occurred after the time of the events in question. In addition, the Committee did not receive any evidence regarding the reasons for the medical leave, nor did it receive any evidence to indicate that the Member’s conduct was a result of a medical condition. At most, the Committee heard that the Member sometimes noted that his behaviour was stress-related, when he was being questioned about his conduct by School administration. The Member was offered support, including through the Board’s Employee Assistance Program (the “EAP”), on multiple occasions but he did not take advantage of any of the support that was offered. Accordingly, the Committee finds that the Discipline Committee is the proper forum in which to consider the Member’s conduct at issue.

SUBMISSIONS OF COLLEGE COUNSEL ON FINDING

College Counsel submitted that the evidence in this matter is sufficiently clear, cogent and convincing to prove, on a balance of probabilities, the particularized allegations contained at paragraphs 5, 7, 8, 9 and 10 of the Notice of Hearing. No evidence was led with respect to paragraph 6 of the Notice of Hearing and the College accordingly withdrew allegation (e) of the Notice of Hearing, namely that the Member abused a student sexually contrary to subsection 1(7.3) of Ontario Regulation 437/97.

According to College Counsel, the uncontroverted evidence establishes that the Member repeatedly made inappropriate comments to students, which were both verbally and emotionally abusive, he physically abused a student during the Coat Grabbing Incident, and he engaged in inappropriate electronic communications with a student. College Counsel therefore submitted that the Committee ought to find the Member guilty of professional misconduct, in that his conduct contravened subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

DECISION

Onus and Standard of Proof

The College bears the onus of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities. The allegations must be supported by clear, cogent and convincing evidence in order for the Committee to make a finding of professional misconduct.

Decision

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (e) 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.

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Gerard Francis Clements committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Committee carefully considered the College’s evidence and submissions when arriving at its decision that the Member is guilty of professional misconduct. The Committee recognizes that the College bears the burden of proof in this case, and that the Member’s decision not to attend the hearing has no bearing on the Committee’s determination of whether or not the College has proven its case.

The evidence before the Committee demonstrates that the allegations of professional misconduct contained in the Notice of Hearing have been proven on a balance of probabilities. The Member’s misconduct, as described below, falls into three general categories: 1) inappropriate comments made to students; 2) inappropriate physical contact with a student; and 3) inappropriate electronic communications with a student.

1) The Member repeatedly made inappropriate comments to students

The Committee received considerable evidence with respect to inappropriate comments that the Member made to students. While the Committee recognizes that some of the evidence it received is hearsay, it notes that hearsay evidence is admissible in discipline hearings and that the evidence in this case is uncontroverted, consistent, and documented through the contemporaneous notes of School administration. The Committee therefore gave this evidence significant weight and finds that it is more likely than not that the Member made the comments outlined below. The Member’s inappropriate comments formed part of a troubling pattern of behaviour in which the Member repeatedly insulted students. The Committee makes the following factual findings with respect to the Member’s inappropriate comments.

The Committee finds that the Member told a student, “What are you, an idiot?”, as alleged at paragraph 5 of the Notice of Hearing. Both Vice-Principal Calvert and Principal McCann testified that they received complaints that the Member called students “idiots”. Principal McCann testified that, on February 25, 2010, she spoke to the mother of a student whom the Member had called an idiot (see Exhibit 6). According to the principal, the Member admitted to calling the student an idiot, but he commented that it was difficult to manage this student’s behaviour. Principal McCann testified that she told the Member that he needed to report to School administration if he was having difficulty with students, and that the School had a clear progressive discipline process in place. She also told the Member that it was never appropriate to call students names.

The Committee finds that the Member told a student that she should go back to her own country if she did not want to learn [XXX], as alleged at paragraph 7(a) of the Notice of Hearing. Both Vice-Principal Calvert and Principal McCann gave evidence that they had received complaints about this incident. Principal McCann logged the complaint that she had received on May 7, 2010 from the parent of the student who received this comment (see Exhibit 6). According to the principal, the Member’s inability to appropriately manage his class and his temper was concerning. The Committee agrees.

The Committee finds that the Member told a student with [XXX] to “shut up”, as alleged at paragraph 7(b) of the Notice of Hearing. Principal McCann testified that, on May 20, 2010, she received a complaint from the parent of the student that the Member had told to “shut up” (see Exhibit 6). According to the principal, the recipient of this comment was a student with [XXX]. The parent reported to Principal McCann that she had tried to raise her concerns with the Member directly on numerous occasions, but the Member did not adequately address her concerns. Principal McCann raised this incident with the Member and she followed up with him about it in a written memorandum (see Exhibit 7).

The Committee finds that the Member called students “stupid” or “retard”, as alleged at paragraph 8(a) of the Notice of Hearing. Vice-Principal Calvert and Principal McCann both testified that they had received complaints from parents and students to this effect. Principal McCann received a complaint from a parent on May 31, 2010 that the Member called students “stupid”, “lazy”, and that he told a student that they “speak like a [XXX] cow” (see Exhibit 6). Although the principal asked the parent to submit a written complaint with respect to these concerns, the parent was reluctant to do so for fear of repercussions to her child from the Member if he were to learn who made the complaint.

The Committee finds that the Member told a student that he wished he could smack them, as alleged at paragraph 8(b) of the Notice of Hearing. Principal McCann testified that she received a complaint from a parent who told her that the Member said the following to a student: “If I was allowed, I would smack you right now” (see Exhibit 8). The principal testified that she addressed this complaint with the Member and reminded him of the support that was available to him through the EAP to help him deal with stress (see Exhibit 8). When the principal addressed this complaint with the Member, he denied having made the inappropriate comment and indicated that he did not need the support of the EAP. Despite the Member’s denial, the Committee finds that he was more likely than not to have made this comment, given the totality of the evidence before it. Principal McCann testified that the Member admitted to her that he had lost his temper with students on several occasions even though he denied this in subsequent meetings.

2) The Member grabbed a student by her coat and angrily yelled at her

The Committee finds that the Coat Grabbing Incident, as alleged in paragraph 9 of the Notice of Hearing, has been proven on a balance of probabilities. Student 4 provided her first-hand account of this incident. She did not overstate her evidence. She testified that she did not think that the Member’s conduct was serious at first, but she was shocked at how the situation escalated and she was intimidated by the Member who was much bigger than she was. Student 4 was in grade [XXX] at the time of the incident.

Student 4 testified that she and a friend were joking around with the Member in the schoolyard at recess when the Member grabbed her by her coat and told her that he was sending her to the principal’s office. Student 4 refused to go because she did not believe that she had done anything wrong that warranted a trip to the principal’s office.

When recess was over, the Member pulled Student 4 aside and the two of them went inside together. They were alone in the stairwell when the Member began yelling at the student. According to Student 4, the Member told her that she had embarrassed him and she testified that he looked very angry. She explained that the Member’s face turned red, that he was yelling at her, and that he was so close to her that he was spitting in her face. Student 4 testified that she was in shock when the Member was yelling at her. She indicated that, after the incident was over, she started to cry when she realized what had happened.

Student 4 further explained that even after she left the School and entered [XXX] school at a different school, she remained traumatized by the incident and had nightmares that the Member would show up to her [XXX] school as her teacher or her supply teacher. She explained how badly the Member had made her feel. Student 4 commented that the Member would regularly refer to her as [XXX]“ or threaten to have her deported because she was of [XXX] descent. Since she was still relatively new to Canada, Student 4 explained that she was embarrassed by these offensive comments and was made to feel that it was wrong to be [XXX].

Vice-Principal Calvert and Principal McCann also testified about the Coat Grabbing Incident and they corroborated Student 4’s evidence in this regard. Principal McCann heard the Member yelling at Student 4 in the stairwell and intervened by bringing the student to Vice-Principal Calvert’s office to address the incident. Principal McCann confirmed Student 4’s evidence that the Member was red in the face while yelling at the student and that he was in her personal space and was very agitated. The principal reported this incident to her superintendent, and she testified that both she and the superintendent were alarmed by the Member’s conduct. Principal McCann also reported the incident to the CAS, which did not conduct any further investigation.

Vice-Principal Calvert testified that she spoke to Student 4 about the Coat Grabbing Incident shortly after it occurred on January 13, 2011. She noted that the incident was so upsetting to Student 4 that it took her approximately 10 minutes just to get the student to calm down. The vice-principal recorded a detailed summary of the incident in an email that she sent to School administration and to the Board on January 14, 2011 (see Exhibit 4).

Vice-Principal Calvert testified that the incident was also addressed at a “Coach and Council” meeting on January 19, 2011, which she attended along with Principal McCann, Superintendent Blanchard, the Member and an Ontario English Catholic Teachers’ Association representative (see Exhibit 5). Principal McCann explained, during her testimony, that although “Coach and Council” meetings are considered non-disciplinary in nature, they are typically held in cases where there are ongoing issues with a teacher, and they signal that a matter has been escalated beyond the school level.

3) The Member initiated inappropriate electronic communications with a student via Facebook

The Committee finds that the Facebook Incident, as alleged at paragraph 10 of the Notice of Hearing, has been proven on a balance of probabilities. Student 5 provided her first-hand account of this incident. The Committee finds that Student 5’s uncontroverted evidence was credible, given that the student was able to clearly recall the incident, her evidence was consistent, and it was plausible and reasonable.

Student 5 testified that the Facebook Incident occurred during the summer of 2011, while she was a student between grades [XXX]7and [XXX]. She explained that the Member sent her a message via Facebook messenger, in which he asked her to call him, he gave her his telephone number, and he included a “winky face” emoticon. Student 5 testified that she thought that it was strange that the Member messaged her during the summer when he had no school-related reason to contact her. Accordingly, she reported the incident to her mother (who was with her friend at the time) and they phoned the Member to confront him about this incident. Student 5 testified that she could hear the phone conversation because she was with her mother and the friend when they called, and the Member was on speaker phone. Student 5 indicated that the Member sounded nervous on the phone and that he hung up on them shortly after being confronted about this incident.

Principal McCann also testified with respect to her knowledge of the Facebook Incident. She explained that she had learned about the incident through her superintendent, who had been notified of the incident by Student 5’s mother. Principal McCann testified that she had also been informed that Student 5’s mother contacted the police in regard to this incident. The principal was copied on a letter from the superintendent of Employee Relations to the Member dated August 30, 2011, in which the Member was notified that he was suspended with pay pending the outcome of the Board’s investigation into the Facebook Incident (see Exhibit 9).

The Committee was also presented with the College’s Professional Advisory regarding the Use of Electronic Communication and Social Media dated February 23, 2011 (see Exhibit 13). Among other things, the Professional Advisory stipulates that “maintaining professional boundaries in all forms of communication […] is vital to maintaining the public trust and appropriate relationships with students” (see Exhibit 13 at page 3). The Professional Advisory indicates that the misuse of social media and electronic communication with students has warranted disciplinary measures (see Exhibit 13 at page 5). It further advises members to avoid exchanging private texts or phone numbers with students (see Exhibit 13 at page 6). The Committee notes that the Member’s conduct in relation to the Facebook Incident was contrary to the Professional Advisory.

Conclusion: the Member’s conduct gives rise to a finding of professional misconduct

Based on its findings of fact outlined above, the Committee finds that the Member’s conduct gives rise to a finding of professional misconduct in that the Member contravened subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

The Committee finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. As described above, there are a few discrete incidents involving the Member that demonstrate that his conduct fell below the professional standards to which members are held. The Facebook Incident and the Coat Grabbing Incident were clear indicators that the Member’s conduct was unprofessional. Moreover, the general ethos and tenor of the Member’s conduct, including the numerous inappropriate comments that he directed towards students, demonstrate a troubling pattern of behaviour that falls far below the standards of the profession. The Member’s insulting and derogatory comments made to students and his lack of self-control when managing his temper and his emotions are deplorable.

The Committee finds that the Member verbally abused students, contrary to subsection 1(7) of Ontario Regulation 437/97. Among other things, the Member yelled at and intimidated Student 4 during the Coat Grabbing Incident, he told a student to go back to her own country if she did not want to learn [XXX], he told a student with [XXX] to “shut up”, and he was generally rude and offensive in his remarks to a number of students. The Member’s verbally abusive behaviour was not an isolated incident; it formed part of a disturbing, insensitive and unprofessional pattern of behaviour. The Committee is particularly troubled by the Member’s racially insensitive comments which embarrassed his students and made them feel unwelcome. These sorts of comments have no place in our schools, where teachers are expected to provide a safe and enriching learning environment and to be good role models for students.

The Committee finds that the Member physically abused a student, contrary to subsection 1(7.1) of Ontario Regulation 437/97. During the Coat Grabbing Incident, the Member made inappropriate physical contact with Student 4 and he violated her personal space. The Member was an adult male and the student was a young adolescent female at the time of the incident. It is never acceptable to grab students in the way that the Member did.

The Committee finds that the Member abused a student or students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. As described above, the Member’s conduct had a significant effect on at least one of his students. Student 4 testified that she was in shock during the Coat Grabbing Incident and that she started crying after the incident once she realized what had happened. Vice-Principal Calvert testified that she spent approximately 10 minutes calming the student down following the incident. Student 4 further testified that she experienced nightmares when she was in [XXX] school because of her traumatizing experience with the Member. She also described feeling ashamed that she was [XXX], as a result of the Member’s derogatory comments to her. The Committee denounces the Member’s conduct that made his students feel unsafe and unwelcome.

The Committee finds that the Member failed to comply with the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Among other things, by telling a student with [XXX] to “shut up”, by calling students “stupid”, and by making derogatory comments to students, the Member’s conduct violated subsection 264(1) of the Education Act or the Regulations made under that Act.

The Committee finds that the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The totality of the Member’s misconduct, including his verbal, physical, and emotional abuse of students, and his inappropriate electronic communications with a student was disgraceful, dishonourable, and unprofessional.

Finally, the Committee finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member initiated inappropriate electronic communications with a student via Facebook, in which he provided the student with his telephone number and invited her to call him. This communication occurred during the summer and was completely unrelated to any school activities. The student involved was a young, adolescent girl. Merely five months before the Member initiated this inappropriate communication, the College had released a professional advisory that specifically addressed this type of inappropriate communication. The Member ought to have known better. Accordingly, the Member engaged in conduct unbecoming a member of the teaching profession.

SUBMISSIONS OF COLLEGE COUNSEL ON PENALTY

College Counsel submitted that the Committee ought to order the following penalty:

1. a reprimand;

2. a suspension of three months in duration;

3. terms, conditions or limitations which generally include the condition that the Member successfully complete courses regarding anger management and classroom management, prior to returning to teaching or any position for which a Certificate of Qualification and Registration is required; and

4. publication of the finding and order of the Committee, in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

College Counsel presented the Committee with two cases in support of its proposed penalty: Ontario College of Teachers v. Speakman, 2013 LNONCTD 102 (“Speakman”), and Ontario College of Teachers v. Towler (18 November 2015) (“Towler”). College Counsel submitted that these cases would help to guide the Committee’s determination of the appropriate penalty, as they provide a range of reasonable penalty for similar misconduct.

In Speakman, although Mr. Speakman received a shorter (one-month) suspension than the three-month suspension sought in the Member’s case, College Counsel submitted that this was because Mr. Speakman only engaged in inappropriate physical contact (he did not also make inappropriate comments to student and initiate inappropriate electronic communications like the Member). College Counsel further submitted that there were mitigating factors in Speakman that are not present in the Member’s case. For instance, Mr. Speakman attended his hearing and came to an agreement with the College, which conserved judicial resources and prevented student witnesses from having to testify.

In Towler, by contrast, Mr. Towler received a lengthier (six-month) suspension than that sought in the Member’s case because his misconduct was more serious than the Member’s misconduct.

The Committee sought additional submissions from College Counsel with respect to the courses that the College wanted the Member to successfully complete before returning to the teaching profession. In particular, the Committee asked whether a course regarding appropriate boundaries between teachers and students would be appropriate, given the circumstances. College Counsel submitted that a boundaries course was not sought because the Facebook Incident was an isolated incident of professional misconduct, whereas some of the Member’s other misconduct was repeated.

The Committee also sought additional submissions with respect to whether the reprimand sought by the College should be delivered orally or in writing. College Counsel submitted that it would welcome a written reprimand (to the extent that this was possible), and it requested that, if an oral reprimand were ordered, the reprimand should not be made conditional on the Member’s return to teaching.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, on a date to be arranged by the Member and the Hearings Office, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months, with such suspension commencing on February 29, 2016. The fact of the suspension is to be recorded on the Register immediately.

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

(a) prior to any return to teaching or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding anger management;

(b) prior to any return to teaching or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management;

(c) within 30 days of his completion of the courses outlined in (a) and (b) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Decision, Reasons for Decision and Order of the Discipline Committee; and

(ii) the Member has successfully completed the courses.

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

REASONS FOR PENALTY

The Committee carefully considered the submissions of College Counsel with respect to penalty and reviewed the relevant jurisprudence provided. The Committee believes that the penalty outlined above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member.

The Committee finds that the Member’s insensitive and offensive comments, his physically and emotionally abusive behaviour, and his inappropriate electronic communications warrant a reprimand by his peers. The reprimand will be delivered orally (and not in writing) because the Committee believes that it is important to directly address its concerns with the Member regarding his professional misconduct. Recording the fact of the reprimand on the Register will inform the public and the profession that the Member has received discipline for his professional misconduct, which will serve as a general deterrent.

The Committee finds that a three-month suspension is reasonable and appropriate given the circumstances of the Member’s case. It demonstrates the serious nature of the Member’s misconduct and it informs the profession of the consequences for engaging in similar misconduct, which in turn protects the public interest. In determining the appropriate duration of the Member’s suspension, the Committee carefully considered the jurisprudence presented by the College, as well as the mitigating and aggravating factors in this case.

The Committee finds that the aggravating factors significantly outweigh the mitigating factors in this instance. In fact, the Committee finds that there are no mitigating factors in this matter. Unlike in Speakman where Mr. Speakman attended his hearing and came to an agreement with the College, which conserved judicial resources and prevented student witnesses and others from having to testify, these mitigating circumstances were absent in the Member’s case. The Member refused to engage in any part of this disciplinary process.

The aggravating factors in the Member’s case are significant. First, the Member engaged in three different types of professional misconduct: 1) he repeatedly made inappropriate comments to students; 2) he physically abused a student; and 3) he initiated inappropriate electronic communications with a student. Second, the Member’s misconduct was not an isolated incident; he engaged in a troubling pattern of behaviour. Third, the Member did not take responsibility for his actions at any stage of these proceedings. Fourth, by refusing to engage in this disciplinary process in any way, the Member demonstrated a disregard for the College’s authority as a self-governing body.

The Committee finds that the courses of instruction regarding anger management and classroom management will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

Finally, the Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted in this case. Publication with the Member’s name identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. It holds the Member accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Dated: March 4, 2016

______________________________

Ravi Vethamany OCT, Chair

Chair, Discipline Panel

______________________________ Sara Nouini, OCT

Member, Discipline Panel

______________________________

Tom Potter

Member, Discipline Panel