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
Peter Frank Gumulak, OCT, a member of the Ontario College of Teachers.
PANEL: Vicki Shannon, OCT, Chair
Jean-Luc Bernard, OCT
Ann Ciaschini, OCT
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,
) Law Clerk
– and – )
PETER FRANK GUMULAK ) Karen Ensslen,
(CERTIFICATE #533579) ) Ursel Phillips Fellows Hopkinson LLP,
) for Peter Frank Gumulak
) Marc Spector,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: May 27, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 27, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated April 8, 2015, (Exhibit 1) was served on Peter Frank Gumulak (the “Member”), requesting his presence on April 22, 2015, to set a date for hearing, and specifying the charges. The hearing was subsequently set for May 27, 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 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);
(c) 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
(d) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:
At all material times, Peter Frank Gumulak 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.
At all material times, the Member was employed by the Grand Erie District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in [XXX], Ontario.
Notification of the Possible Presence of Asbestos
On September 4, 2013, during a staff meeting, staff members, including the Member, were made aware of a binder relating to asbestos available in the main office. Attached hereto and marked as Exhibit “B” is a copy of the staff meeting agenda for September 4, 2013.
The binder contained a “Re-Assessment Report on Asbestos-Containing Building Materials” (the “Report”). The Report, updated annually, provided information about the location and condition of known asbestos-containing building materials within the School.
On November 28, 2013, the principal sent an email to all staff members reminding them that no structural work could be done in any classroom without first notifying the head custodian, stating that she needed to be aware because there were “too many health and safety issues”. Attached hereto and marked as Exhibit “C” is a copy of the email from the principal to all staff members on November 28, 2013.
In December 2013, a maintenance worker for the Board, and the maintenance supervisor, attended the School to view an area of drywall in the mezzanine area of the [XXX] at the School. The maintenance department had received a work order to patch or repair the drywall. The maintenance worker was concerned, based on the School’s asbestos plan, that the drywall in need of repair may contain asbestos. The Member was present in the [XXX] at the time of the visit and asked them what they intended to do. The Member was informed that they were considering their options because of the potential of asbestos in the drywall.
In February 2014, the maintenance supervisor advised the Member that they had not forgotten about his wall, and that they were still trying to figure out how to repair it because of the asbestos. He mentioned they may put plywood on top of it to cover it up. The Member suggested that the students could cut the plywood.
Later in February 2014, the Member saw the maintenance worker in the School’s hallway and referred to the discussion he had with the maintenance supervisor about the potential plan to cover up the drywall in the [XXX] with plywood. The Member asked if his students could help with the plywood. The maintenance worker said no because he had to do the work when no one was around, given that the drywall contained asbestos.
If the Member were to testify, he would state that he understood from these conversations that the wall of his [XXX] might contain asbestos, but did not understand that this included the walls of the [XXX] mezzanine.
Re-Assessment Report on Asbestos-Containing Building Materials
- The front page of binder stated:
ATTENTION
ONE OR MORE SAMPLES OF DRYWALL JOINT COMPOUND REFLECTS THE PRESENCE OF CHRYSOTILE ASBESTOS IN THIS FACILITY.
PLEASE READ THROUGH THE ENTIRE ATTACHED REPORT TO VIEW THE SAMPLE LOCATIONS.
PLEASE DO NOT DISTURB THE DRYWALL OR JOINT COMPOUND IN THIS FACILITY.
FOR ADDITIONAL SAMPLING PLEASE CONTACT FACILITY SERVICES.
Attached hereto and marked as Exhibit “D” is a copy of the Re-Assessment Report of Asbestos-Containing Building Materials, dated January 2014.
- The Survey Findings in relation to drywall joint compound (“DJC”) contained the following statements:
Asbestos-containing DJC is present within the areas assessed within the subject site as confirmed by the initial asbestos assessment, performed by others. All drywall finishes with joint compound within the subject site must be assumed to be asbestos-containing until further sampling can prove otherwise…
Due to the fact that the possibility of various building construction phases could exist in the building and the random nature of asbestos in DJC, DJC that was previously sampled may not be a true representation of all Drywall finishes throughout the entire building. We recommend that prior to disturbing any drywall, additional sampling be performed.
Exhibit “D”, a copy of the Re-Assessment Report of Asbestos-Containing Building Materials, dated January 2014, page 5 at 3.9.
- The Report contained a number of recommendations including the following:
4.1.3 Due to the presence of solid drywall and plaster walls and ceilings, caution should be taken when entering or demolishing existing walls or ceilings as ACM mechanical insulation may be present that are not indicated in this report;
4.1.4 Due to the fact that the possibility of various building construction phases exist in the building and the random nature of asbestos in plaster and drywall joint compound, plaster and drywall finishes that were previously sampled may not be a true representation of all finishes throughout the entire building. We recommend that prior to disturbing any plaster or drywall finishes, additional sampling be performed.
The Conduct
During the second semester of the 2013-2014 academic year, Student 1, Student 2 and Student 3 were male students in the Member’s [XXX] class. They were selected to design and build a new rack to replace an old rack hanging in the [XXX] mezzanine.
When the Member removed the old rack in the [XXX] mezzanine, he discovered the wall behind the rack was damaged, with numerous existing holes in it. The Member decided to use the existing holes in the wall to teach his students how to repair drywall.
On or about March 3, 2014, the Member demonstrated to Students 1, 2, and 3 how to use a drywall saw and utility knife to remove the damaged drywall. He then instructed the three students to remove sections of the drywall to get to the support studs behind it, and to prepare the wall to hang the new rack.
The Member and the students reported that the students were wearing dust masks and protective eyewear as they worked on the wall. The Member, however, was not wearing a dust mask during his demonstration, nor while he was monitoring the students’ progress as they worked on the wall.
As the students were working on the wall, the maintenance worker and head custodian came by. The maintenance worker said to the Member, “you do know what that is” and “you should not be doing that”. One of the students replied, “why, is it asbestos?” The maintenance worker immediately notified the Health & Safety Officer and the principal about possible exposure to asbestos. The principal instructed the Member and the students to cease work on the wall immediately, and closed off the area due to possible contamination.
The Health & Safety Officer attended the School and observed that an eight foot by three foot section of drywall had been removed, along with the tape and drywall compound, and that the area had not been isolated from the rest of the [XXX] during removal. The Ministry of Labour was notified because it was an exposure incident. Attached hereto and marked as Exhibit “F” is a copy of the Ministry of Labour’s Occupational Health and Safety Inspector’s Field Visit Report, dated March 3, 2014.
There were other students present in the [XXX] while the three students were working on the wall in the [XXX] mezzanine. All students present remained in the [XXX] until the Health & Safety Officer was able to verify that it was safe for them to leave the classroom. The concern related to not knowing how much asbestos had been disturbed, and not wanting those coming from the [XXX] to potentially contaminate the rest of the School by walking through it.
The Member acknowledges that he was aware there was asbestos drywall in the School, including in his [XXX]. However, he believed that the drywall upstairs in the mezzanine area was different. He acknowledges that he did not notify the head custodian of his intention to have his students work on the upstairs mezzanine wall, nor did he check the asbestos binder before instructing his students to repair it.
Board Response
On March 3, 2014, upon being advised that asbestos-containing drywall wall finishes had been removed at the School without utilizing asbestos procedures, the Board retained Maple Environmental Inc. (“Maple”) to monitor the air and remove the drywall debris. On that date, Maple collected and analyzed an air sample from the [XXX] mezzanine area, and verified the airborne fibre concentration of asbestos in that area was within regulated limits. Maple’s written report dated March 17, 2014, confirmed the presence of asbestos in a small quantity in one of two air samples collected, and concluded the level of asbestos confirmed was “extremely low and should be considered as being at ambient levels”. Attached as Exhibit “E” is a copy of Maple Environmental Inc.’s Asbestos Abatement Site Report dated March 3, 2014, and a copy of Maple Environmental Inc.’s TEM Air Monitoring Report dated March 17, 2014.
The Ministry of Labour investigated the incident and did not lay any charges. Attached hereto and marked as Exhibit “F” is a copy of the Ministry of Labour’s Off-site Visit Report dated April 10, 2014.
The Board suspended the Member for three days without pay based on its conclusion that the Member “did not heed the information” he had been given, thereby exposing students and himself to potential health and safety risks with respect to asbestos. This discipline is currently the subject of a grievance proceeding under the Labour Relations Act, 1995.
PLEA OF NO CONTEST
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional], and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) 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;
(f) he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;
(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
The Committee granted the request by Counsel for the College that the allegation of professional misconduct set out in paragraph (b) and a portion of paragraph (c) [disgraceful or dishonourable] of the Notice of Hearing, namely that the Member contravened subsection 1(15) and 1(18) [disgraceful or dishonourable] of Ontario Regulation 437/97, be withdrawn.
Having considered the Statement of Uncontested Facts and Plea of No Contest, 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(18) [unprofessional], and 1(19).
REASONS FOR DECISION
The Member did not contest the truth of the facts and exhibits referred to in paragraphs 1 to 23 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional], and 1(19).
Paragraphs 14, 15, 16, 19 and 20 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 14, 15, 16, 19 and 20 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 14, 15, 16, 19 and 20 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding safety procedures and maintaining a safe classroom environment, subject to the following conditions;
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:
(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
- direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
College Counsel submitted that publication with the name of the Member is warranted in this case, due to the serious nature of the incident. The Member disregarded the Board’s Health and Safety procedures, which he ought to have known were not discretionary and needed to be followed. By publishing the Member’s name in the College’s official publication, the Committee will send a strong message to the Member and to the profession that safety issues are taken seriously.
According to College Counsel, publication with name serves several purposes. It acts as a specific deterrent as it holds the Member accountable for his actions. It serves a general deterrent as it indicates to the profession that this type of misconduct will not be tolerated. Publication with name also helps to ensure the transparency of the discipline process, and it demonstrates that the College is accountable to the public, which inspires public confidence in the discipline process.
College Counsel referred the Committee to two cases and urged the Committee to follow these precedents: Ontario College of Teachers v. Waugh, 2002 LNONCTD 34; Ontario College of Teachers v. Powers, 2014 LNONCTD 111. College Counsel submitted that, although neither of these cases are directly on point, they are both similar cases in which publication with name was ordered.
Submissions of Member’s Counsel
Counsel for the Member submitted that the Committee has the discretion to order publication with or without the Member’s name, and that publication with name was not warranted in this case. When determining the issue of publication, Member’s counsel urged the Committee to consider, among other things: the nature of the Member’s misconduct; the Member’s prior teaching record; the Member’s privacy interests; and the penalty objectives, including specific and general deterrence, and transparency. Counsel for the Member submitted that publishing the Member’s name in the College’s official publication would add little value to the penalty order, but that it would adversely affect the Member’s standing in the community and could limit his career.
Member’s Counsel submitted that the penalty objectives would be adequately met and the public interest would be protected without publishing the Member’s name in Professionally Speaking/Pour parler profession. The reprimand would serve as a specific deterrent, the coursework regarding safety procedures and maintaining a safe classroom environment would satisfy the need for remediation, and publishing a summary of the finding and order of the Committee (even without including the Member’s name) would serve as a general deterrent to the profession. Given that decisions of the Committee are published on the College’s website, the objective of ensuring a transparent discipline process is achieved without including the Member’s name in Professionally Speaking/Pour parler profession.
Member’s Counsel referred the Committee to six analogous cases in which publication with name was not ordered: Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17; Ontario College of Teachers v. Milsap, 2013 LNONCTD 52; Ontario College of Teachers v. Williams, 2013 LNONCTD 77; Ontario College of Teachers v. Brame, 2014 LNONCTD 76; Ontario College of Teachers v. Naklicki, 2015 LNONCTD 54; and Ontario College of Teachers v. Schuber, 2015 LNONCTD 6. All six cases involved isolated incidents of professional misconduct that were at the lower end of the spectrum, and publication with name was deemed unnecessary. Member’s Counsel urged the Committee to follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts, and should not be relied upon by the Committee.
Reply Submissions of College Counsel
In reply, College Counsel submitted that the six cases presented by Member’s Counsel were distinguishable and should not be relied upon by the Committee. Unlike the cases presented by Member’s Counsel, which involved isolated incidents of professional misconduct, the Member’s conduct was not the result of a momentary lapse of judgment. He was fully aware of the asbestos situation at the School and he did not heed this information, despite having been reminded not to disturb the drywall at the School on various occasions.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.
The Committee finds that the Member’s behaviour warrants a reprimand by his peers. 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 the course of instruction regarding safety procedures and maintaining a safe classroom environment will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help to ensure that he maintains a safe classroom environment where student safety is a priority.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted, given the serious nature of the Member’s misconduct. The aggravating factors outweigh the mitigating factors in this case. The member was aware of the presence of asbestos at the School. Based on his expertise as a [XXX] teacher, he should have displayed greater knowledge of the applicable procedure under such circumstances. The Member disregarded the warnings that were made available to him through a staff meeting, and through communication from School administration and maintenance personnel. The Member made a decision without consultation which undermined the health and safety of students and staff.
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.
Date: June 17, 2016
Vicki Shannon, OCT
Chair, Discipline Panel
Jean-Luc Bernard, OCT Member, Discipline Panel
Ann Ciaschini, OCT
Member, Discipline Panel