DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against Angela Anita Grogan, OCT, a member of the Ontario College of Teachers.
PANEL: Pauline Smart, Chair Hanno Weinberger, OCT
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,
) Law Clerk
-and- )
) Heather Alden
) and Kirsty Niglas-Collins,
ANGELA ANITA GROGAN ) Student-at-Law,
(CERTIFICATE # 291737) ) Ontario Secondary School
) Teachers’ Federation,
) for Angela Anita Grogan
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: October 23, 2015
PENALTY DECISION AND REASONS FOR PENALTY
On March 13, 2015, a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) rendered a decision finding Angela Anita Grogan (the “Member”) guilty of professional misconduct.
The Committee determined that the Member’s involvement in two incidents during the 2008-2009 academic year gave rise to a finding of professional misconduct. First, the Committee found that the Member falsely reported to her school’s administrators that one of her colleagues, Mr. Avery, had physically abused a [XXX] [XXX], [XXX] [XXX]-year-old female student (“Student 1”) by standing on her toes, and did not allow Student 1 to get out of her chair in the classroom (the “toes incident”). The Committee found that the Member’s version of events regarding the toes incident was implausible. Second, the Committee found that the Member falsely reported to her school’s administrators that Mr. Avery had inappropriately touched Student 1 by stroking her hair and touching her shoulder (the “inappropriate touching incident”). The Committee found that the Member had no reasonable grounds to suspect that Mr. Avery had committed any act of sexual abuse or misconduct against a student.
The Committee also found that the Member inappropriately called Mr. Avery a liar in front of staff and students (the “liar incident”), but because this was an isolated incident, the Committee made no finding of professional misconduct in relation to the liar incident.
The Committee recognized that this matter raised important questions about the duty to report. While the Committee acknowledged that it is very important to encourage teachers to report all incidents of abuse where a teacher has a reasonably held suspicion that a student is in need of protection, the Committee found no evidence to demonstrate that the Member had reasonable grounds to suspect that any abuse had occurred in this case. The Member had leveled groundless accusations of physical and sexual abuse against Mr. Avery, which were both stigmatizing and career-threatening. Without diminishing the importance of the duty to report, the Committee found that false reporting can be extremely damaging and that it was not the type of action that the duty to report seeks to encourage.
The Committee found that the Member’s false reporting of both the toes incident and the inappropriate touching incident gave rise to a finding of professional misconduct. In particular, the Committee found that the Member’s conduct contravened subsections 1(5), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.
The Committee reconvened on October 23, 2015 to hear submissions with respect to penalty. The Member attended the hearing via teleconference for medical reasons (see Exhibit 102) and she had legal representation.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to make an order:
requiring that the Member be reprimanded in person;
directing the Registrar to revoke the Member’s Certificate of Qualification and Registration; and
directing that the finding and order of the Committee be published in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
College Counsel first reviewed the Committee’s key findings from its Decision on Finding and Reasons for Decision dated March 13, 2015 to provide context for the penalty that the College sought. The key findings are set out above.
With respect to the order sought, College Counsel first submitted that the reprimand is important because it allows the Committee to speak directly to the Member and to express its displeasure with the Member’s conduct that gave rise to these proceedings. The College asked that this reprimand be given in person. College Counsel then submitted that revocation is an appropriate penalty in this case due to the following seven aggravating factors.
Aggravating factors as described by College Counsel
First, the Member’s allegations against Mr. Avery were unfounded and did not even meet the low threshold that triggers the duty to report.
Second, the Member’s allegations against Mr. Avery were extremely serious: the Member alleged that Mr. Avery had physically and sexually abused a [XXX] student. Moreover, these false reports were not isolated incidents. The Member falsely accused Mr. Avery of extremely serious wrongdoing on two separate occasions. These allegations were so serious that they could have ended Mr. Avery’s career or had criminal implications, or both.
Third, the Member’s allegations of sexual and physical abuse were made against a colleague, who is another member of the College. Counsel for the College added that there is no evidence that the Member even tried to speak to Mr. Avery about her concerns before reporting him to school administration.
Fourth, College Counsel submitted that false reports can be extremely damaging to the profession, to the public interest, and to the confidence and trust that the public places in the teaching profession.
The fifth aggravating factor, according to College Counsel, is the impact that this case and these false allegations have had on Mr. Avery. College Counsel noted that the Committee had found that the Member’s false allegations against Mr. Avery have had a significant negative effect on his career and his personal life. The Member tarnished Mr. Avery’s reputation and she did so without sufficient evidence upon which to base her allegations.
Sixth, College Counsel submitted that the Committee ought to consider the impact that the Member’s actions have had on the various witnesses who were involved in this case. According to College Counsel, the Member had insinuated that other colleagues of hers, including administrators, teachers, and educational assistants, were covering up the fact that Mr. Avery had physically and sexually abused a [XXX] [XXX] student. Not only did the Member point her finger at Mr. Avery, but during these proceedings, she also leveled serious accusations against several of her former colleagues who testified in this matter.
Seventh, College Counsel submitted that the Committee ought to consider the impact that the Member’s groundless accusations have had on Student 1’s family. According to College Counsel, Student 1’s father testified before the Committee and gave very emotionally-charged and genuine evidence. He genuinely believed the allegations that the Member had made against Mr. Avery and this belief took an emotional toll on him and his family. The emotional rollercoaster that Student 1’s family was put through, according to College Counsel, was the result of the Member’s groundless allegations against Mr. Avery, which the Committee found to have no reasonable basis on the facts.
Based on the seven aggravating factors described above, College Counsel submitted that revocation was an appropriate penalty in the Member’s case.
Submissions regarding publication with the Member’s name
College Counsel submitted that the Committee ought to order the publication of its finding and order in Professionally Speaking/Pour parler profession, with the Member’s name. According to College Counsel, there is no good reason to anonymise the Member’s name. It is in the public interest to have a transparent discipline process where members are held accountable for their conduct. College Counsel noted that, even in Ontario College of Teachers v. Welland, 2014 LNONCTD 120 (“Welland”), where the member’s conduct was at the lower end of the spectrum of making false allegations, Ms. Welland’s name was published in the College’s official publication. College Counsel added that the Member herself had no hesitation naming Mr. Avery and leveling false accusations against him. Accordingly, College Counsel submitted that there is no reason to not publish the Member’s name based on the facts of this case.
College Counsel did not present the Committee with any jurisprudence because he submitted that there were no analogous cases. He did, however, refer the Committee to Welland, in anticipation of the likely submissions of Member’s Counsel that Welland is an analogous case where a more lenient penalty was ordered than that sought by the College in this matter. College Counsel submitted that the Committee should not rely on Welland because it is distinguishable for the following three reasons.
First, College Counsel noted that Welland was resolved by way of an Agreed Statement of Facts and Guilty Plea, unlike the Member’s case which was contested over the course of nine days and involved numerous witnesses and more than 100 exhibits. Because the decision in Welland was the result of a negotiation between the College and the Member, compromises may have been made such that the penalty jointly proposed may have been different (and possibly more lenient) than the penalty that the parties would have sought if the hearing were contested.
Second, College Counsel submitted that Welland is distinguishable from the Member’s case because Ms. Welland’s conduct was far less serious than the Member’s conduct. The Member falsely accused Mr. Avery of physically and sexually abusing a [XXX] [XXX] girl. This conduct, according to College Counsel, is not comparable to that of Ms. Welland.
Third, College Counsel submitted that Welland is distinguishable from the Member’s case because there is no indication in Welland that Ms. Welland’s false allegations had a serious impact on anyone involved. In the Member’s case, however, the Member’s false allegations have had a serious impact on the public interest, on several witnesses who testified in these proceedings, on Student 1’s family, and on Mr. Avery in particular. College Counsel pointed to the devastating impact that this matter has had on Mr. Avery, his family, his relationships, and his health. Accordingly, College Counsel urged the Committee not to rely on Welland when determining the appropriate penalty in the Member’s case.
SUBMISSIONS OF MEMBER’S COUNSEL
At the outset of her submissions, Member’s Counsel indicated that the Member steadfastly maintains her innocence and that she stands by her evidence that her reports against Mr. Avery were truthful. Member’s Counsel added that the Member filed a Notice of Appeal in this matter on May 28, 2015, as evidenced in her updated Ontario College of Teachers Registered Member Information (see Exhibit 103). Accordingly, Member’s Counsel submitted that all of her submissions were without prejudice to the Member maintaining her innocence and her right of appeal.
Member’s Counsel submitted that there are five fundamental reasons why the College’s proposed penalty in this case is inappropriate. First, Member’s Counsel submitted that the Committee could not penalize the Member for her decision to contest the allegations against her and to defend herself in this matter. Second, Member’s Counsel submitted that the proposed penalty is grossly out of line with the penalty imposed for misconduct of similar or greater severity. Third, Member’s Counsel submitted that the proposed penalty does not accurately reflect the mitigating factors present in this matter. Fourth, Member’s Counsel submitted that many of the aggravating factors raised by College Counsel are improper and ought not to be considered by the Committee when determining the appropriate penalty. Fifth, Member’s Counsel submitted that the proposed penalty does not serve the public interest.
i. The Member should not be penalized for maintaining her innocence and refusing to plead guilty
Member’s Counsel first submitted that it would be an error of law for the Committee to impose a penalty, in whole or in part, because the Member refused to make an admission of guilt and maintained her innocence. According to Member’s Counsel, maintaining one’s innocence is a fundamental right of every member of the College. Member’s Counsel relied on the following two cases to support this assertion: Law Society of Upper Canada v. Armstrong, 2011 ONLSAP 1 at para. 27; and, College of Physicians and Surgeons of Ontario v. Gillen (1993), 1993 CanLII 8641 (ON CA), 13 O.R. (3d) 385 at para. 6 (C.A.).
ii. Revocation is grossly out of line with past penalties imposed for misconduct of similar or greater severity
Member’s Counsel submitted that the proposed penalty is grossly out of line with past penalties imposed for misconduct of similar or greater severity. Member’s Counsel relied on Re: Stevens and Law Society of Upper Canada (1979), 1979 CanLII 1749 (ON HCJ), 55 O.R. (2d) 405 at paras. 29-31 (Div. Ct.) for the proposition that like cases should be decided in a like manner. Although Member’s Counsel acknowledged that the Committee is not required to follow the decisions of other panels of the Discipline Committee, she noted that the principle remains that members who engage in similar misconduct should receive similar penalties.
Member’s Counsel submitted that the Committee ought to consider Welland, which is an analogous case in which the member received a more lenient penalty than that proposed by College Counsel in this matter. Member’s Counsel urged the Committee not to accept College Counsel’s submission that Welland is irrelevant because of the fact that it was resolved by way of an Agreed Statement of Facts and Joint Submission on Penalty, whereas the Member’s case was contested over many days. According to Member’s Counsel, even in cases that are resolved by way of agreement, panels of the Discipline Committee still need to accept or reject the parties’ agreement depending on whether or not the agreement adequately protects the public interest and achieves the objectives of penalty, including deterrence and rehabilitation of the member.
Member’s Counsel submitted that, in Welland, it was determined that a reprimand, coursework, and publication of the Member’s name were an appropriate response to Ms. Welland’s multiple false accusations made against a student, a colleague, and another professional. While Member’s Counsel acknowledged that Welland was not identical to the Member’s case, she submitted that it would be helpful to the Committee when determining the severity of the penalty to impose on the Member.
In addition, Member’s Counsel submitted that the proposed penalty of revocation was too severe for the type of misconduct that the Member was found to have committed. Member’s Counsel relied on two cases in which the members were found to have committed very serious misconduct, but received lesser penalties than revocation. First, Ontario College of Teachers v. Ciraco, 2015 LNONCTD 47, involved a member who had been found guilty of sexually assaulting a colleague, and the Discipline Committee accepted the jointly submitted penalty of a reprimand, a six-month suspension, and coursework, and determined that publication with the Member’s name was appropriate.
Second, Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17 (“Blanchard”), involved a member who had physically assaulted a student, and the Discipline Committee accepted the jointly submitted penalty of a reprimand and coursework, and determined that publication without the Member’s name was appropriate. According to Member’s Counsel, revocation would be inappropriate in the Member’s case, given that past cases involving physical or sexual assault (which she submitted are more egregious forms of misconduct than making false allegations against a colleague) resulted in lesser penalties.
Similarly, Member’s Counsel relied on two cases involving members who had failed to report incidents of sexual assault involving students, which resulted in lesser penalties than revocation: Ontario College of Teachers v. Ross, 2009 LNONCTD 50, and Ontario College of Teachers v. Tallevi, 2011 LNONCTD 33. According to Member’s Counsel, the failure to report these incidents was found to be at the high end of the spectrum of professional misconduct, given the College’s obligation to protect students and to ensure their safety. Nevertheless, the Discipline Committee in these two matters did not find it necessary to revoke the Certificate of Qualification and Registration of either of these two members. Member’s Counsel submitted that revocation in this matter would not be in line with past cases before the Discipline Committee.
iii. Five mitigating factors weigh against the proposed penalty
Member’s Counsel submitted that the proposed penalty does not accurately reflect the mitigating
factors present in this matter. Member’s Counsel urged the Committee to consider the following five mitigating factors that weigh against the imposition of the Committee’s most devastating penalty, which is revocation.
The first mitigating factor submitted by Member’s Counsel is the Member’s long, unblemished teaching career prior to this matter. Before these proceedings, the Member had never faced discipline by the College during her 30 year teaching career. Member’s Counsel submitted that the Discipline Committee has frequently accepted the notion that a member’s prior record can be considered a mitigating factor, and she relied on Blanchard at para. 36 in this regard.
The second mitigating factor submitted by Member’s Counsel is that the College failed to prove that the Member was guilty of all four of the original allegations of professional misconduct (see Exhibit 63). According to Member’s Counsel, Ontario College of Teachers v. Mann, 2006 LNONCTD 20 at para. 10, supports the proposition that a failure to prove all allegations can be considered a mitigating factor.
The third mitigating factor submitted by Member’s Counsel is that the Committee received evidence that the Member appropriately reported the suspected abuse of a student by reporting that Mr. Avery was alone with Student 1 in a classroom behind closed doors, when Student 1 was supposed to be in [XXX] class (the [XXX]“ incident”). Member’s Counsel reviewed what she submitted was the relevant evidence in this regard, from several witnesses. According to Member’s Counsel, the College released a Professional Advisory in 2002 on “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct” (see Exhibit 62), which indicates that members should avoid “seeing students in private and isolated situations” and should ensure, whenever possible, that classroom doors are left open when they are meeting with a student. Therefore, by reporting that Mr. Avery was alone with Student 1 behind closed doors, the Member appropriately reported suspicious behaviour, which was in line with the College’s 2002 Professional Advisory.
The fourth mitigating factor submitted by Member’s Counsel is that the Member has demonstrated good conduct following the events that gave rise to these proceedings. The Member continued to teach after the 2008-2009 academic year without further incident. Member’s Counsel relied on Blanchard at para. 36 for the proposition that continuing to teach without further incident is a relevant mitigating factor.
The fifth mitigating factor submitted by Member’s Counsel is that the Member poses no further risk to the public or the profession, given that she was on leave of absence at the time of the penalty hearing and that she intends to remain on leave until her retirement, which is effective June 30, 2016 (see Exhibit 104). Accordingly, Member’s Counsel submitted that if the Committee were to order that the Member receive a reprimand or fulfil the condition of successfully completing coursework, these orders could be made contingent on the Member’s return to the teaching profession, as was done in Ontario College of Teachers v. Primeau, 2010 LNONCTD 6, and Ontario College of Teachers v. Robitaille, 2014 LNONCTD 125.
iv. Issues regarding several of the aggravating factors raised by the College
Member’s Counsel submitted that there were issues with several of the aggravating factors raised by College Counsel. With respect to the first aggravating factor, that the Member’s allegations against Mr. Avery were unfounded, Member’s Counsel submitted that this was simply a veiled attempt by College Counsel to penalize the Member for maintaining her innocence and that it should not be considered an aggravating factor. Member’s Counsel submitted that the Member believes that the allegations were well-founded and provided evidence to support this belief.
With respect to the third aggravating factor, that the Member’s false reports were made against a colleague who was also a member of the College and that there was no evidence that the Member tried to speak to Mr. Avery about her concerns before reporting his alleged conduct to school administration, Member’s Counsel submitted that it is not a requirement for a reporting member to notify a suspected member when making an adverse report concerning the suspected sexual abuse of a student. She referred the Committee to the College’s 2015 Professional Advisory on the “Duty to Report”, in addition to the evidence from the hearing of this matter, in support of this proposition.
With respect to the sixth aggravating factor, regarding the impact that the Member had on various witnesses in this matter by insinuating that they were covering up incidents of physical and sexual abuse to protect Mr. Avery, Member’s Counsel insisted that this was another thinly veiled attempt by College Counsel to penalize the Member for maintaining her innocence and mounting a defence.
With respect to the seventh aggravating factor, regarding the impact that the Member had on Student 1’s family, Member’s Counsel submitted that this was not an aggravating factor because the Member actually had a positive impact on Student 1’s family and not a negative impact as College Counsel submitted. According to Member’s Counsel, Student 1’s family was grateful for and supported the Member’s reports that involved Student 1. Student 1’s family noticed increased sexualized behaviour from Student 1 and found that this behaviour gradually subsided when Student 1 was removed from the school. Student 1’s family welcomed the Member’s reports that helped them to understand the change in their daughter’s behaviour.
v. The proposed penalty does not serve the public interest
Finally, Member’s Counsel submitted that revocation does not serve the broader public interest in this matter. According to Member’s Counsel, it is important to promote the duty to report. In fact, the College has recently released a Professional Advisory in June 2015 on the “Duty to Report”, which signals the importance of this duty. Member’s Counsel submitted that ordering revocation in this matter would have a chilling effect on the duty to report.
Member’s Counsel further submitted that, by ordering revocation in this matter, other members of the profession will become reluctant to report their suspicions of abuse. This problem would be exacerbated in cases involving either very young or [XXX] [XXX] students who might not be able to serve as witnesses to prove that a member had a reasonably held suspicion that the student was in need of protection. Ordering revocation in this matter makes it risky for other members to report their reasonably held suspicions of abuse, because if they are unable to prove that their suspicions were reasonable, they too could have their Certificates of Qualification and Registration revoked. Member’s Counsel submitted that this could lead to a large number of members failing to report because of the potential ramifications.
Member’s Counsel concluded by noting that this chilling effect on the duty to report would be compounded if the Committee also ordered that the Member’s name be published in the College’s official publication.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel replied to several of the submissions of Member’s Counsel, beginning with the mitigating factors raised by Counsel for the Member. He urged the Committee to consider the particular circumstances of this case when determining the appropriate penalty.
Reply submissions addressing the mitigating factors raised by Member’s Counsel
With respect to the first mitigating factor, regarding the Member’s lack of a prior discipline record, College Counsel submitted in reply that while this may be a mitigating factor, its persuasiveness depends on the circumstances. In the Member’s case, there were multiple allegations of misconduct spanning several months and the false reports that the Member made were very serious. Although this may have been her first discipline proceeding, her misconduct was so serious that revocation would be an appropriate penalty.
With respect to the second mitigating factor, in which Member’s Counsel alleged that the College failed to prove all four of the original allegations of professional misconduct, College Counsel submitted in reply that this could not be considered a mitigating factor. The Notice of Hearing (Exhibit 1) only contained three allegations and the College had no reason to prove the original allegation relating to the [XXX] incident since it was not alleged in the Notice of Hearing. It would have been improper to attempt to prove something without having given the Member proper notice through the Notice of Hearing.
With respect to the liar incident not giving rise to a finding of professional misconduct, College Counsel submitted that the Committee still found that the Member’s conduct in this regard was inappropriate, even if the isolated incident did not give rise to a finding of professional misconduct. The fact that the incident was not proven to amount to professional misconduct is not a strong mitigating factor, according to College Counsel, because this was the least serious of the three allegations against the Member, and the two most serious allegations gave rise to a finding of professional misconduct.
With respect to the third mitigating factor, that the Member appropriately reported the [XXX] incident, College Counsel reiterated that the [XXX] incident was not alleged in the Notice of Hearing and that it has no relevance at this stage of these proceedings. Although Member’s Counsel reviewed the evidence and transcripts regarding this matter with the Committee, College Counsel submitted that this was merely evidence that the Committee had heard, but not evidence that it had accepted. While the College maintained that this mitigating factor is irrelevant to the Committee’s determination of the appropriate penalty, College Counsel responded to the submissions about this issue since they had been raised. According to College Counsel, even if the [XXX] incident were found to have occurred (which it was not), the Member did not properly report this incident because, by her own admissions, it took her five months to report it to school administration, which is not timely or proper reporting.
With respect to the fourth mitigating factor, that the Member continued to teach after the events that gave rise to these proceedings without further incident, College Counsel submitted in reply that the Member’s after-the-incident conduct is a valid consideration but not a very significant one.
With respect to the fifth mitigating factor, that the Member poses no further risk to the public or to the profession because she is on leave of absence until her retirement in 2016, College Counsel submitted in reply that this is a valid consideration but not a significant mitigating factor. According to College Counsel, the Committee must send a message to the public and to other members of the profession that the type of misconduct at issue in this matter is very serious and will be met with serious consequences. This message should not be diluted because the Member has decided to leave the profession.
Reply submissions addressing Member’s position that the proposed penalty is grossly out of line with similar cases
College Counsel replied to the submissions of Member’s Counsel that the proposed penalty is grossly out of line with the penalties imposed for misconduct of similar or greater severity. First, College Counsel submitted that the Committee should not be comparing and contrasting cases involving the failure to report with cases involving false reporting, as Member’s Counsel had suggested. One is not necessarily better or worse than the other; circumstances matter. In the Member’s case, the Committee found that the false reports were extremely damaging. Accordingly, serious consequences are appropriate.
Second, College Counsel replied to the submission of Member’s Counsel that like cases should be treated alike, and more particularly, that it would be difficult to reconcile the revocation of the Member’s certificate in this matter when other members, who had engaged in worse misconduct involving physical or sexual abuse, did not have their certificates revoked. According to College Counsel, all of the cases that Member’s Counsel relied on to support this proposition were the result of negotiated agreements between the parties. College Counsel submitted that it was not surprising that those cases resulted in lesser penalties than might have been ordered if the matters were contested, because they were the result of compromises. College Counsel added that there are also many cases involving physical or sexual assault where revocation was ordered, but these cases were not presented by Member’s Counsel.
In any event, College Counsel submitted that cases from other panels of the Discipline Committee are not binding on the Committee, and that the task for the Committee is to determine where the Member’s conduct fits along the spectrum of professional misconduct, and to make a penalty order that is in the public interest based on the circumstances of the Member’s case.
Third, College Counsel replied to the submission of Member’s Counsel that Welland is an analogous case in which Ms. Welland received a more lenient penalty than that proposed by the College in the Member’s case. College Counsel reiterated that Welland is distinguishable on its facts because the Member’s conduct was far more egregious than that of Ms. Welland and because there is evidence of the negative impact that the Member’s conduct had on various individuals. Accordingly, College Counsel urged the Committee not to rely on Welland when determining the appropriate penalty in the Member’s case.
Reply submissions addressing the Member’s issues regarding the aggravating factors raised by College Counsel
College Counsel replied to the issues that Member’s Counsel raised with respect to the aggravating factors in this case. First, College Counsel agreed with Member’s Counsel that the Committee should not penalize the Member for deciding to contest this matter and for not pleading guilty. The Member’s decision to contest this case is not an aggravating factor; it is a neutral factor.
According to College Counsel, the first aggravating factor was simply that the Member’s allegations in this matter were unfounded. College Counsel disagreed with the submission of Member’s Counsel that arguing that the Member’s allegations were unfounded was a roundabout way of penalizing the Member for maintaining her innocence. College Counsel submitted that the Committee made its finding that the Member’s allegations against Mr. Avery were unfounded, and insisted that the Committee is entitled to rely on this finding and to treat it as an aggravating factor.
Second, College Counsel similarly disagreed with the submission of Member’s Counsel that pointing to the impact that the Member had on various witnesses in this matter was another veiled attempt by the College to penalize the Member for maintaining her innocence and mounting a defence. College Counsel submitted that the Committee is entitled to rely on its findings regarding the impact that the Member had on others, when it considers the aggravating factors in this matter. As a general principle, College Counsel submitted that the Committee is perfectly entitled to base its penalty decision on the findings that it made on the merits of the case.
Third, College Counsel replied to the submission of Member’s Counsel that Student 1’s family was supportive of the Member and her reports, and that the Committee should therefore not consider the Member’s impact on Student 1’s family to be an aggravating factor. According to College Counsel, the only reason that Student 1’s family was supportive of the Member was that she misled them. Given the Committee’s finding that the Member had no reasonable basis to report Mr. Avery, the Member’s reports were groundless and could not have benefited Student 1’s family. The Member misled Student 1’s family about the source of the changes in their daughter’s behaviour, which should not be considered a positive impact. College Counsel insisted that the fact that the Member misled the student’s family should be considered an aggravating factor.
Reply submissions addressing the position of Member’s Counsel that the proposed penalty does not serve the public interest
College Counsel replied to the submission of Member’s Counsel that the proposed penalty does not serve the public interest because it would have a chilling effect on the duty to report. According to College Counsel, this concern is misplaced. In its Decision on Finding and Reasons for Decision dated March 13, 2015, the Committee commented several times about the importance of the duty to report, but found that the Member had absolutely no basis to report Mr. Avery and that her false reports were very damaging. College Counsel submitted that the penalty that the Committee orders would not have a chilling effect on the duty to report, given that the Committee has already addressed this issue in its decision on finding. As the Committee found, the Member did not even meet the low threshold that triggers the duty to report.
College Counsel added that it was unlikely that members, reasonably reading the Committee’s reasons, would conclude that they should shirk their duty to report because the penalty for failing to report might be less severe than the penalty for making a false report. According to College Counsel, this is not a logical conclusion based on a fair reading of the Committee’s reasons. The Committee rejected the argument that a finding against the Member would have a chilling effect on the duty to report, and College Counsel urged the Committee to similarly reject the argument that revoking the Member’s certificate would have a chilling effect on the duty to report.
Finally, with respect to the issue of publishing the Member’s name in Professionally Speaking/Pour parler profession, College Counsel replied to the submissions of Member’s Counsel that publication with name is not warranted in this case. According to College Counsel, publication with name is appropriate given the aggravating factors described above. In addition, College Counsel submitted that even in Welland, which was a case involving less egregious conduct than the Member’s case, publication with name was ordered. College Counsel insisted that there was no compelling reason not to publish the Member’s name in this case.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member, which certificate the Member is to immediately surrender to the Registrar.
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 DECISION
In arriving at its decision, the Committee carefully considered the evidence as well as the submissions of both parties and the relevant jurisprudence. The Committee also considered the aggravating and mitigating factors described by both parties and determined how much weight the various factors should receive. The Committee has the authority to order the above penalty pursuant to subsections 30(4) and 30(5) of the Ontario College of Teachers Act, 1996.
The Committee finds that revocation of the Member’s Certificate of Qualification and Registration, and publication with name, is the appropriate penalty order given the circumstances of the Member’s case. A reprimand is unnecessary because the objectives of penalty (namely, specific and general deterrence, transparency, accountability, and the protection of the public interest) are adequately achieved through revocation and publication with name.
At the outset, the Committee notes that it has not penalized the Member for maintaining her innocence or for her refusal to plead guilty to the allegations in this matter. The Committee agrees with both parties that members have a right to contest the allegations against them and a right to defend themselves. The Member’s decision to exercise these rights had no bearing on the Committee’s determination of this matter.
The aggravating factors outweigh the mitigating factors in this matter
The Committee weighed the aggravating and mitigating factors that were raised in this matter and finds that the aggravating factors far outweigh the mitigating factors. The Committee gives no weight to two of the five mitigating factors raised by Member’s Counsel. The Committee finds that the second mitigating factor outlined by Member’s Counsel (that the College failed to prove that the Member was guilty of all four of the original allegations of professional misconduct) is irrelevant. The Notice of Hearing only contains three allegations against the Member, and the most serious two of these allegations were found to give rise to a finding of professional misconduct. Moreover, the Committee’s assessment is qualitative and not quantitative. The nature of the Member’s proven misconduct was extremely serious, regardless of the number of allegations that were proven.
The Committee also gives no weight to the third mitigating factor outlined by Member’s Counsel (that the Member appropriately reported suspicious behaviour with respect to the [XXX] incident). The [XXX] incident was not alleged in the Notice of Hearing and it did not inform the Committee’s finding on the merits of this case. It is irrelevant whether or not the Member appropriately reported suspicious behaviour relating to the [XXX] incident because the Member’s conduct in relation to this purported incident has no bearing on the Committee’s decision with respect to penalty. The Committee does not concern itself with the Member’s unproven and unrelated conduct in arriving at its determination with respect to penalty; the Committee’s penalty decision responds to its previous findings of fact and addresses the Member’s proven conduct only.
With respect to the remaining three mitigating factors raised by Member’s Counsel, the Committee recognizes that the Member has had a lengthy and previously unblemished teaching career, that she had returned to teaching without further incident following the events that gave rise to these proceedings, and that she poses limited risk to the profession because she is currently on medical leave until her intended retirement in June 2016.
Although the Committee gives these remaining three mitigating factors some weight, the Committee does not find them to be very persuasive. First, the Member’s prior teaching record and her subsequent return to teaching without further incident do little to excuse her serious and repeated misconduct that had a damaging impact on her colleague. Second, although the Member may pose little future risk to the profession, the Committee’s penalty order must send a strong message to the teaching profession that engaging in similar conduct to that of Member will result in serious consequences. General deterrence is an important penalty objective that must be addressed.
The aggravating factors in this matter are numerous and compelling. They significantly outweigh the mitigating factors described above. First, the Member’s allegations against Mr. Avery were unfounded and they did not meet the low threshold that triggers the duty to report. The Committee agrees with College Counsel that it is entitled to rely on its findings when determining the appropriate penalty in this matter. The Committee is deeply concerned that the Member leveled groundless accusations of an extremely serious nature against her colleague.
Second, the Member’s false allegations against Mr. Avery occurred on two separate occasions and they escalated in terms of severity. The Member first falsely accused her colleague of physically abusing Student 1 and she then falsely accused her colleague of sexually abusing Student 1 on a second occasion. The Member’s misconduct is not an isolated incident.
Third, the Member’s false reports are damaging to the profession, to the public interest, and to the confidence and trust that the public places in the teaching profession. By making false reports, the Member undermined the duty to report. There is a low threshold that triggers the duty to report. The threshold is low in order to encourage teachers to report their reasonably held suspicions when students are in need of protection. Although the threshold is low, there is still a threshold and it is important that the threshold is met before members report concerning behaviour. If members were to report concerning behaviour without meeting this threshold (i.e. without having reasonable grounds to suspect that a student is or may be in need of protection), this would likely result in an increased number of false reports, which are damaging to the profession.
False reporting is damaging to the profession for two reasons: first, it diverts resources that should be used to respond to legitimate concerns that a student is at risk of harm; second, false reporting could desensitize the profession to the point that legitimate concerns are ignored and students who reasonably face a risk of harm are not adequately protected.
The following analogy helps to illustrate how false reporting is a serious concern. Fire alarms, like the duty to report, exist for a reason. They are used to protect the public in case of a fire. However, pulling a fire alarm when there is no smoke is problematic for similar reasons to those described above: first, fire fighters may be diverted from attending a legitimate emergency; second, when fire alarms are repeatedly sounded for no reason, people stop responding to the warning and those whom the alarm is intended to protect may actually find themselves at greater risk of harm.
Fourth, the Member’s actions have had a significant negative effect on several individuals who were involved in this matter. Most importantly, her false reports have had a devastating impact on Mr. Avery, his family, his career and his health. In addition, the Member’s false reports have had a negative impact on Student 1’s family. Although Member’s Counsel described the positive impact that the Member’s reports have had on Student 1’s family, the Committee does not accept that there is anything beneficial about misleading a family to believe that their daughter’s behavioural changes were the result of her having been physically and sexually abused by her teacher, when there is no evidence to demonstrate that this might reasonably have been the case.
To be sure, if the Member had a reasonably held suspicion that Student 1 was in need of protection, the Committee would have encouraged this type of reporting and it may have found that the Member had helped the student’s family to understand their daughter’s behavioural changes. The Committee, however, received absolutely no evidence upon which to make such a finding. To use the above analogy, the Member “pulled the fire alarm” when there was no smoke. This behaviour does not benefit anyone involved; rather, it causes significant harm, and it is an affront to the importance of the duty to report.
Revocation is not out of line with similar cases
The Committee recognizes that it is not bound by past decisions of the Discipline Committee but that, as a general principle, like cases should be treated alike. While the Committee received several cases from Member’s Counsel to suggest that revocation would be too severe a penalty, the majority of these cases were distinguishable on their facts and provided limited assistance.
The most similar case on its facts is Welland. The Committee recognizes that the Member received a lesser penalty than revocation in Welland, but notes that this was for good reason. First, Ms. Welland’s misconduct was less serious than that of the Member in this matter. Second, there was no evidence that Ms. Welland’s conduct had a significant impact on those around her, whereas the Member’s conduct had a damaging impact on Mr. Avery and others. Although the facts in Welland were similar to the Member’s case in some respects, they were not sufficiently analogous so as to persuade the Committee that as lenient a penalty was warranted in the Member’s case as was ordered in Welland. The significantly more serious misconduct in the Member’s case warrants a significantly more severe penalty.
The Committee also notes that Welland was resolved by way of agreement, whereas the Member’s case was determined over the course of a lengthy and hotly contested hearing. Although the Committee does not find this distinction between Welland and the Member’s case to be a tremendously significant consideration, the Committee notes that there may have been compromises made between the parties in Welland that could have resulted in a more lenient penalty for the sake of reaching an agreement (which compromises may not have been made if the matter were contested). Ultimately, however, the crucial difference between Welland and the Member’s case is that Ms. Welland’s misconduct was less serious than the Member’s misconduct.
The Committee did not rely heavily on Ciraco, Blanchard, Ross, or Tallevi, which Member’s Counsel presented to support the proposition that revocation would be grossly out of line with past penalties imposed for similar or more serious misconduct. Ciraco and Blanchard were cases involving physical or sexual abuse in which revocation was not ordered. Member’s Counsel submitted that, because these two cases resulted in lesser penalties than revocation for similar or more serious misconduct than that in which the Member engaged, the Committee must not order revocation in the Member’s case.
This conclusion is not supported by its premise. In order to accept that revocation in the Member’s case would be grossly out of line with Ciraco and Blanchard, the Committee would have to assume that falsely labelling a colleague as an abuser of [XXX] individuals (as the Member did in this matter) is significantly less egregious than abusing a student. The Committee would also have to assume that members who abuse students never face penalties as severe as revocation. The Committee does not find it reasonable to make these two assumptions and it therefore does not jump to the conclusion that Member’s Counsel has suggested.
Similarly, the Committee does not accept that Ross and Tallevi adequately support the conclusion that revocation in the Member’s case would be grossly out of line with past penalty decisions of the Discipline Committee. Ross and Tallevi are distinguishable on their facts. They involve the failure to report abuse, whereas the Member made a false report. The Committee does not believe that it is necessary to determine whether the failure to report is more or less severe than making a false report. There may very well be a case one day where the failure to report results in revocation. More germane to this penalty decision is the fact that the Member engaged in serious misconduct on more than one occasion, which had a devastating impact on her colleague, and which negatively affected the public’s trust and confidence in the profession.
Revocation in this matter will not have a chilling effect on the duty to report
Facts matter. The Member provided no evidence to demonstrate that it was reasonable for her to suspect that a student was in need of protection. The low threshold that triggers the duty to report was not met in this case. While the Member continues to hold the opposite view, the Committee’s penalty decision is not based on what the Member believes to be true; it is based on the Committee’s findings of fact.
Revocation in this matter should not have a chilling effect on the duty to report because the decision to revoke the Member’s certificate should not dissuade members from reporting a reasonably held suspicion that a student is in need of protection. The Committee encourages this type of reporting. This is not, however, the type of reporting in which the Member engaged. The Member made false reports – twice. Her reports did not protect a student who was in need of protection; they had a devastating impact on a colleague and they undermined the underlying purpose of the duty to report. This is not the type of behaviour that the duty to report seeks to encourage.
Members of the profession need not worry that they too may have their certificates revoked if they follow through on their duty to report, provided that they have a reasonably held belief that a student is in need of protection. The Committee is not revoking the certificate of a member who reported a reasonably held suspicion; the Committee is revoking the certificate of a member who, despite not having a reasonably held suspicion that a student was in need of protection, falsely reported that her colleague had engaged in the physical and sexual abuse of a student. Revocation is being ordered in this case to address the Member’s egregious conduct. The Member did not appropriately follow through on her duty to report; instead, she undermined this important duty.
Accordingly, the Committee finds that revocation is the appropriate penalty in this matter. The Member damaged the reputation of her colleague and had a devastating impact on his personal and his professional life. Through her false reports, she also misled Student 1’s family about the source of their daughter’s concerning behaviour. The Member’s conduct undermined the duty to report, which exists to protect [XXX] members of the population from the risk of harm. As a result, the Member has forfeited the privilege of holding a Certificate of Qualification and Registration.
Publication with name is appropriate
The Committee further finds that publication of a summary of its finding and order in Professionally Speaking/Pour parler profession, with the Member’s name, is appropriate given the circumstances. Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. It also holds the Member accountable for her actions. Publishing the Member’s name 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. For similar reasons to those described above, publication with name should not have a chilling effect on the duty to report.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: January 11, 2016
Pauline Smart
Chair, Discipline Panel
______________________________ Hanno Weinberger, OCT
Member, Discipline Panel