Ontario College of Teachers v. Balsamo, 2016 ONOCT 2

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Balsamo, 2016 ONOCT 2

Date: 2016-06-03

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

Salvatore Balsamo, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Wes Vickers, OCT

Marie-Claude Yaacov

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,

) Law Clerk

– and – )

SALVATORE BALSAMO ) Jerry Raso,

(CERTIFICATE #443783) ) Ontario English Catholic ) Teachers’ Association,

) for Salvatore Balsamo

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: May 6, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 6, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 17, 2014, (Exhibit 1) was served on Salvatore Balsamo (the “Member”), requesting his presence on August 11, 2014, to set a date for hearing, and specifying the charges. The hearing was subsequently set for May 6, 2016.

The Member was in attendance for the hearing and had legal representation.

THE ALLEGATIONS

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

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

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

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

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

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

(e) 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

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

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. At all material times, Salvatore Balsamo was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2011-2012 academic year, the Member taught Grade [XXX] at the School. During the 2012-2013 academic year, the Member taught [XXX] for Grades [XXX].

4. Student 1 and Student 2 were female students in the Member’s Grade [XXX] class during the 2011-2012 academic year. They were [XXX] years old, good friends, and in Grade [XXX] at the School during the 2012-2013 academic year.

Inappropriate Electronic Communications (Facebook) with Students

5. From the outset of the 2012-2013 academic year, the Member communicated with a select group of students via Facebook on a regular basis. This group of students was eager to participate in these chats with the Member. Their chats occurred in the evening hours and over weekends. The Member, an experienced teacher, was well-liked by students at the School.

6. On one occasion, via Facebook the Member shared with a select group of students a poem he wrote about them. In the poem, he refers to seven female students, including Students 1 and 2, in familiar terms, and refers to himself as “The Big Daddy Mack.” The Member sought their praise as the students applauded his “rhyme”: “I swear on my kids life.. that was 100% all me. Did you guys like it.. was it funny??”. Attached hereto and marked as Exhibit “C” is a copy of this “rhyme.”

Inappropriate Communications about Colleagues

7. On or about August 30, 2012 at the outset of the academic year, the Member sent an electronic message via Facebook to Student 1, Student 2, and at least one other student entering Grade [XXX] at the School. In his message, he advised them how to survive Grade [XXX] and assured them he would keep them busy: “The [XXX] from last year survived by ignoring the teachers they didn’t like and as you saw were in my class constantly. I’m not saying you have to do that but… it’s an option to get away from the crap. Secondly, no teacher can say don’t help me. If they do, stick up for yourself… I’m always there and around for you guys. I will keep you guys really busy with activities, fundraisers etc so don’t worry. That’s if you don’t ditch me…” Attached hereto and marked as Exhibit “B” is a copy of the Facebook page containing this message.

8. From the outset of the 2012-2013 academic year, the Member kept in contact with his former Grade [XXX] students by requesting their assistance on a regular basis during school hours. This involved requesting the assistance of a select group of Grade [XXX] students during class instructional time, and on other occasions during recess and/or lunch, in the gymnasium over the course of the 2012-2013 academic year. As noted in his message to these students at the outset of their Grade [XXX] year, the Member’s opinion was that “no teacher can say don’t help me,” and he advised them to “stick up” for themselves if any teacher did.

9. In early 2013, Teacher A, one of the two Grade [XXX] teachers, told his students they were no longer permitted to assist the Member in the gymnasium. During Facebook chats with Student 2, the Member pressed her for details about what Teacher A said, and wanted to know how Student 2 would react if her teacher agreed with Teacher A’s decision. He expressed his concern that Student 2’s teacher might agree with Teacher A and counselled, “Honestly.. last resort .. get your parents involved” and “you guys have to fight now…” Attached hereto and marked as Exhibit “D” is a copy of the Facebook pages containing these communications.

10. A little while later the Member told Student 2 that he believed Teacher A had spoken with her teacher. He told her he had “a bad feeling about this time. If it’s the end.. I will say my goodbyes tomorrow to everyone.” When Student 2 assured the Member it wasn’t the end, the Member responded with the following statement: “It could be.. trust me he bullies to get his way. He will make it into a big deal cause he has zero life. Zero..” in reference to Teacher A. Attached hereto and marked as Exhibit “E” is a copy of the Facebook pages containing these communications.

11. In further discussions about this issue, Student 2 told the Member that her teacher was supposed to be on their side, or at least listen to what they had to say. The Member encouraged her to remind her teacher of that fact and declared: “Well, if you don’t.. this is all over.. no jokes. I wouldn’t treat her nicely anymore.” He advised Student 2 who should accompany her and what to say to her teacher. He repeated that he was “really upset” with Teacher A and reiterated: “if I don’t see you then I will say my goodbyes tomorrow night in a message… Just all of you have to fight for me.. just like I’ve fought for all of you in the past‼” Attached hereto and marked as Exhibit “F” is a copy of the Facebook pages containing these communications.

12. The following day over Facebook, the Member questioned Student 2 about what happened. When Student 2 reported that her teacher would continue to permit them to “go down” to the Member as long as she had confirmation from the Member about when the students were needed, the Member retorted, “Ya.. I came up with that idea.” The next day the Member sent a note to Student 2’s teacher requesting the students’ assistance “for first recess and lunch. Didn’t want to push it.” Attached hereto and marked as Exhibit “G” is a copy of the Facebook pages containing these communications.

13. Interspersed throughout these chats with Student 2 were references to the Member’s new car. He told Student 2 that he was “driving this pig tomorrow‼ Wait til you see it‼” When Student 2 said she was excited to see it, he told her, “I’m only asking for people that fought for me.. that’s it.” Attached hereto and marked as Exhibit “H” is a copy of the Facebook page containing this communication.

Other Inappropriate Comments to Student 1 and Student 2 on Facebook

14. In his electronic communications with Student 1, the Member made the following inappropriate comments:

(a) “Im so gonna rip a doughnut on your fancy street!” in reference to driving his new car;

(b) “You are so young my [XXX] [XXX] liking friend…”;

(c) “She has to sit in the back seat like a muslim woman!”, when Student 1 asked him whether he will let his wife drive his new car;

(d) “I want to live alone on a beach in Jamaica‼ Please take her‼”, in reference to his wife;

(e) “… maybe in July you and [Student 2] and whomever you want also can meet at [XXX].. my two boys will be there also”;

(f) “So I’m glad we can all do the [XXX] thingy”;

(g) “My shoes are amazing.. I want to kick somebody they are so special”, along with a photograph he sent her of his new shoes;

(h) “Who cares... they didn’t think twice to ditch you”, in reference to Student 1 confiding in the Member that she thought one friend told two others what she had said about them;

(i) “..its been too much lately without you guys helping too much. Sucked”;

(j) after leaving school early because of a stomach ache, “My stomach was killing me.. still is… I’m laying down now.. I feel pregnant.. gtg [got to go].. need to fart the pain away… talk lates‼”

Attached hereto and marked as Exhibit “I” are copies of these electronic communications from the Member to Student 1, as well as a copy of a communication on Facebook between the Member and Student 2 about visiting [XXX] in July.

15. The Member communicated with Student 1 electronically via Facebook while away on vacation with his family in Florida in March 2013, telling her where he had been, who he had seen, what he had eaten. He also teased Student 1 by suggesting that he would stay in Florida for another month to find a teaching job, then for an extra two days. Attached hereto and marked as Exhibit “J” are copies of the Member’s communications with Student 1 while he was on vacation.

16. In a conversation with Student 2, the Member queried: “Does it feel we don’t talk as much as before? Or just me..” Student 2 responded that it could be because she sometimes did not feel that she had anything to say, but offered to “put myself out there a bit more.” The Member assured her she always had things to say. Student 2 explained she didn’t “want to be annoying” like another student, who she referred to by name, and the Member assured her that she (Student 2) had never annoyed him or lied to him, like the other student. Attached hereto and marked as Exhibit “K” is a copy of this conversation between the Member and Student 2.

17. In his discussions with Student 2, the Member referred to other students in a demeaning and derogatory way:

(a) “Lol.. honestly you have never annoyed me or lied to me.. like her”;

(b) “For tonight only.. she wanted to tell me something private. Then I said I’d delete her again.. lol” and “I’m so tired of her.. lol” – when asked by Student 2 whether he was communicating with a certain student on Facebook;

(c) telling Student 2 which students he planned to delete on Facebook;

(d) telling Student 2 that another student had just texted him and that he wasn’t going to respond, “I just told her to leave me alone.. I don’t have time for her.. like zero..”; and

(e) expressing his displeasure with the student referred to above by comparing her with a different student who kept in contact with him daily, suggesting that the student above “could do at least one per week or so.”

Attached hereto and marked as Exhibits “K” and “L” are copies of these communications from the Member to Student 2.

18. Before March break in 2013, the Member asked Student 2 how Student 1 was doing. When Student 2 said she didn’t know, the Member told her, “I texted her two days back but no response. Don’t say anything to her.” Student 2 was surprised: “Reaaally!: O & don’t worry sir I would never‼” The Member replied, “Its ok.. she has been doing that to me lately..”, prompting Student 2 to say the following before signing off: “If I don’t message you right away I’ll prob be out! So don’t be alarmed… Lol That’s in march break tho if I go…” Attached hereto and marked as Exhibit “M” is a copy of this exchange between the Member and Student 2.

19. In or around the end of March 2013, the Member questioned Student 2 about why Student 1 had not been in contact with him: “can I ask you something?… but promise not to say anything.. k?” After Student 2 promised, the Member probed, “Student 1 hasn’t msged me since I came back from Florida.. not once to ask me how my trip was.. why?” Student 2 was surprised. The Member added, “not once.. today at school she didn’t say anything about it either.” Student 2 said she did not know why and suggested that Student 1 “just forgot.” The Member replied, “Hmm no.. she didn’t forget. She hasn’t been keeping in touch that much even before florida.. I think she is moving on. It’s time for me to distance myself from her I’m thinking.”

20. Student 2 suggested that the Member raise it with Student 1. The Member’s response: “I don’t feel I have to say anything.. not to be rude but she shouldn’t do this to me.. but I can’t force her to keep in contact.” Then he ended their chat abruptly: “sorry.. but gtg [got to go].. just want to tell you that. Have a good night.”

21. Student 2 asked the Member if he wanted her to talk to Student 1 about it, and when he didn’t respond, she wrote, “I won’t then…” Attached hereto and marked as Exhibit “N” are copies of these communications between the Member and Student 2.

22. Approximately one hour later, the Member accused Student 2: “You told her!” Student 2 denied the allegation and told the Member she “would never without your permission!!!! Never did!” The Member retorted, “Just a freakin coincidence she texted…”

23. Student 2 replied, “you have to believe me. I’m being completely honest u can ask her. I didn’t say anything.” The Member’s response: “I’m really thinking its best not to talk anymore. I have zero trust in you.” Student 2 was stunned: “what.. Sir I never told her tho. But you don’t believe me.” The Member confirmed, “I don’t believe you at all…”

24. When Student 2 insisted she was telling the Member the truth, the Member challenged her: “You have to swear on a bible and wish your mom cancer if you are lying.. can you do that?” Student 2 promised, “Yes sir!!!! I swear on Jesus’s life and that I go to hell if I’m lying. I swear on my life‼ If I’m lying!” Attached hereto and marked as Exhibit “O” are copies of these communications between the Member and Student 2.

25. The Member countered: “Nope.. you have to swear on a bible and wish cancer if you are lying…” Student 2 did as the Member requested. Despite this fact, the Member cut off communication with Student 2 – he “unfriended” her. Student 2 believed the Member did so to punish her. When the Member re-established communication with her, his first question was, “did you like not chatting for over a week?” Then the Member gave Student 2 an ultimatum: “Im very disappointed with [Student 1], so it’s a choice you have to make…” Attached hereto and marked as Exhibit “P” are copies of these communications between the Member and Student 2.

26. Student 2 told the Member she wanted to “be close” with both of them. The Member reminded her, “she didn’t even message when I came back from florida.. that was bad. She ditched..” When Student 2 again suggested the Member speak with Student 1, the Member responded, “Nah.. I’m not ready yet to talk with her.. I’m sure she doesn’t care anyways.” At this point the Member told Student 2 that he lost all his contacts. He asked Student 2 to text her name and phone number to his phone. Attached hereto and marked as Exhibit “Q” is a copy of these exchanges between the Member and Student 2.

27. In the days following, the Member informed Student 2: “Well I’m choosing now to move on also from both of you. I wish you all the best in life and truly take care.” Student 2 told the Member that she wasn’t ready to move on. She stressed that both he and Student 1 were important to her and it was “a lot of pressure to choose.” The Member responded: “Well its ok…she obviously never cared”, then asked, “what did she say/react be honest”, referring to Student 1. When Student 2 explained that Student 1 was upset that Student 2 was caught in the middle, the Member told her:

“Well Im truly thinking since you guys are good friends and she still hasn’t tried to msg me proves that she has chosen a life without me. So, I truly think we shouldn’t contact or for you to come down anymore.. for the sake of your strong bond/friendship with her.. which is special.

I mean it.. no hard feelings here.. she is not the person I thought she was.

So, you don’t need any stress to choose.. tbh.. its not fair to you.. so I’m choosing.

I still think she is a good person.. just not so trustworthy.”

Attached hereto and marked as Exhibit “R” are copies of these communications between the Member and Student 2.

Investigation

28. Effective June 24, 2013, the Member was placed on paid leave while the Board commenced an investigation. Both Toronto Police Services and Catholic Children’s Aid Society (“CCAS”) were contacted. No criminal charges were laid.

29. By letter dated August 28, 2013, the CCAS advised the Board that “Based on the information obtained during the course of the investigation, Risk that the Child is Likely to be Emotionally Harmed Resulting from Caregiver’s Actions has been verified.” Attached hereto and marked as Exhibit “S” is a copy of this letter.

30. By letter dated October 17, 2013, the Member was advised that the Board had concluded its investigation:

The Board is very concerned about your actions. We are in possession of a significant number of documents that show a striking lack of judgement and a clear breach of appropriate boundaries with students. The documents evidence a sustained pattern of behaviour over a period of time and numerous comments and conversations are engaged in with students which are clearly inappropriate. Additionally, negative comments regarding another member of the teaching staff are included in your conversations.

31. The Board imposed a two day disciplinary suspension without pay and restricted the Member from communicating with students through any form of social media for a period of five years. In addition, the Member was required to review professional boundaries and obligations, and applicable Board policies. The Member agreed to a voluntary transfer to a new school community. Attached hereto and marked as Exhibit “T” is a copy of the Board’s letter to the Member dated October 17, 2013.

GUILTY PLEA

32. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 31 above (the “Admitted Facts”).

33. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

34. By this document the Member states that:

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

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

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

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

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

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

35. In light of the Admitted Facts and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 31 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 9, 11, 14, 16, 17, 20, 22, 23, 24, 25 and 27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 9, 11, 14, 16, 17, 20, 22, 23, 24, 25 and 27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the Agreement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

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

2. direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession, with the Member’s name.

UNDERTAKING AND ACKNOWLEDGMENT

In addition to the Joint Submission on Penalty, College Counsel advised that the Member and the College entered into a separate Undertaking and Acknowledgment (Exhibit 4). College Counsel submitted that it may appear unusual that the Joint Submission on Penalty did not include a term requiring the Member to take remedial courses. College Counsel noted, however, that the Member had already taken a course on professional boundaries and obligations as well as reviewing applicable Board policies with a Board representative. College Counsel submitted that in the circumstances the counselling proposed in the Undertaking and Acknowledgment would be a more appropriate measure to address the circumstances in this case.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s repeated pattern of verbal, psychological and emotional abuse of students warrants a reprimand by his peers. In addition, on several occasions, the Member encouraged students to circumvent the direction of their teachers and criticized those teachers openly on social media. Moreover, the Member used language that was disrespectful, insensitive and discriminatory in his communication with his students. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. 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. Publication with name acts as a specific deterrent to the Member as 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.

Undertaking and Acknowledgment

In addition to the penalty ordered, the Committee notes that the Member and the College have entered into a separate Undertaking and Acknowledgment.

The counselling requirements set out in the Undertaking and Acknowledgment are designed to help the Member understand why he acted in the way that he did. In addition, the requirements of the Undertaking and Acknowledgment will assist to safeguard students and to remind the Member to treat all students with respect and dignity at all times.

The Committee is satisfied that the penalty and the Undertaking and Acknowledgment are appropriate in the circumstances and together serve and protect the public interest.

Date: June 3, 2016

Tom Potter

Chair, Discipline Panel

______________________________ Wes Vickers, OCT

Member, Discipline Panel

Marie-Claude Yaacov

Member, Discipline Panel