Ontario College of Teachers v Hacker, 2016 ONOCT 24

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Hacker, 2016 ONOCT 24

Date: 2016-04-21

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

Edmund Brian Hacker, OCT, a member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair

Ann Ciaschini, OCT

Jane Ishibashi

BETWEEN: ) Zirka Jakibchuk,

) Legal Counsel, ) for Ontario College of Teachers

ONTARIO COLLEGE OF TEACHERS )

– and – )

EDMUND BRIAN HACKER ) Vaino Poysa,

(CERTIFICATE #519663) ) Ontario Secondary School Teachers’

) Federation,

) assisted by Kirsty Niglas-Collins,

) Student-at-Law,

) for Edmund Brian Hacker

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: March 31, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 31, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated September 10, 2015 (Exhibit 1) was served on Edmund Brian Hacker (the “Member”), requesting his presence on September 24, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for March 31, 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 keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) 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);

(d) 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

(e) 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. Edmund Brian Hacker is and was at all material times a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

Background Information

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a Transportation Technology teacher at Thistletown Collegiate Institute (the “School”) in Toronto, Ontario.

3. The Member obtained his Ontario Teacher’s Certificate in 2007. He has Basic and Advanced Qualifications in Technological Studies, Technological Education – Construction Technology and Technological Design, Grades 9 and 10.

4. As a Transportation Technology teacher at the School, the Member was responsible for providing his students with the hands-on learning experience of repairing automobiles, including but not limited to, dismantling and rebuilding different sections or parts of available automobiles. The automobiles used were donated to the Transportation Technology program at the School.

The Conduct

5. During the 2009-2010 academic year, under the Member’s supervision, students in the Member’s class transferred the engine from a vehicle (1992 Pontiac Firebird) donated to the School into the private vehicle of a staff member, without School authorization. The staff member paid a nominal sum for this work which the Member states that he spent on supplies for the classroom. The Member did not report the transaction to the School’s budget secretary or submit receipts for the supplies.

6. During the 2010-2011 academic year, the Member removed a vehicle (2005 Chevrolet Cobalt) donated to the School from school property and drove it to his private residence without School authorization. The vehicle remained in the Member’s possession for several months, without School approval. If he were to testify, the Member would state that he removed the vehicle from the School to ensure it would not be vandalized or otherwise damaged while sitting unused in the School parking lot, and did not make personal use of the vehicle.

7. During the 2010-2011 academic year, the Member disposed of two School vehicles donated to the School (a 2007 Acura RDX and a 2005 Chrysler Pacifica), without School approval. If he were to testify, the Member would state that the vehicles were unsuitable for further pedagogical use and were disposed of to create room within the classroom for two newly acquired vehicles the Member had arranged to have donated to the School.

8. As a result of the Member’s actions described in paragraphs 5, 6 and 7 above, the Member received a letter of reprimand from the Board and was suspended for five days without pay. Attached to Exhibit 2 at Tabs “B” and “C” respectively are the letter of reprimand from the Board dated February 25, 2013 and a letter from the Board adjusting the length of suspension dated May 2, 2013. The Board also required the Member to meet with the Program Coordinator for Experiential Learning to review the procedures governing the donation of vehicles to the Board, which procedures the Member indicates were not shared with him previously.

9. On or around December 6, 2013, the Member left the School before the end of the school day without School authorization. The Member told the principal of the School that he left to dispose of garbage from his Transportation Technology classroom, such as unusable auto parts, oil containers, cardboard boxes, etc., but in fact, he went to see his wife for personal reasons.

10. As a result of the incident described in paragraph 9 above, the Member received a letter of discipline from the Board and was suspended for five days without pay. Attached to Exhibit 2 at Tab “D” is the letter from the Board dated February 5, 2014. The Board also required the Member to meet with the principal of his current school, or her designate, to review the protocols and procedures governing the disposal of Board property, including the disposal of potentially hazardous materials.

11. The Member is currently teaching Transportation Technology at Sir Oliver Mowat Collegiate Institute in Scarborough, Ontario.

GUILTY PLEA

12. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “Admitted Facts”).

13. 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(10), 1(15), and 1(18).

14. 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.

15. In light of the Admitted Facts and circumstances 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

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (e) of the Notice of Hearing, namely that the Member contravened subsection 1(19) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.

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(10), 1(15) and 1(18).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 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(10), 1(15) and 1(18).

Paragraphs 5 through 10 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 5 through 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10).

Paragraphs 5 through 10 of the Agreed Statement 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 through 10 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).

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 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 Decision, Reasons for Decision and 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 ethics;

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

(i) he or she has reviewed a copy of the Agreed Statement of Facts and Guilty Plea 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; and

(ii) the Member has successfully completed the course.

3. 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, as the Member’s conduct was of a serious nature. Publishing the Member’s name serves as a specific deterrent to the Member, a general deterrent to the profession, encourages the rehabilitation of the Member, and demonstrates accountability to the public. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates that acts of professional misconduct attract serious consequences.

College Counsel submitted that the public expects to be able to trust teachers, and that the Member’s conduct breached this trust. Furthermore, his inappropriate conduct was repeated over a period of four years, and it was deemed serious enough by the Board to warrant two suspensions of five days without pay. Publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

College Counsel referred the Committee to two analogous cases in which serious breaches of professional obligations were committed by members teaching in Transportation Technology programs: Ontario College of Teachers v. Canning, 2015 LNONCTD 20 and Ontario College of Teachers v. Scolaro, 2014 LNONCTD 127. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in both instances.

Submissions of Member’s Counsel

Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. The purposes of penalty set out by College Counsel will be met through the reprimand of the Member, and the completion of a course in ethics. Member’s Counsel maintained that there would be no added value in publishing the Member’s name in the College’s official publication, as it would be unduly punitive given the facts and the mitigating factors in this matter. Member’s Counsel further noted that the role of a Transportation Technology teacher is different than that of typical academic classroom teachers, and has different responsibilities.

Counsel for the Member urged the Committee to consider the mitigating factors in this matter, which include the following: the Member recognizes and appreciates his wrongdoing, which was the result of his lack of knowledge and understanding of Board policies and procedures; no students were harmed as a result of the Member’s actions; only one allegation against the Member involved dishonesty, and it was a singular event; the Member has already suffered substantial consequences, both financially and to his career, including a loss of approximately $4000 in salary during his two suspensions without pay; the Member’s misconduct occurred years ago, dating back to 2009 in some instances; and, the Member has been teaching successfully in the years following the incidents giving rise to this matter.

Member’s Counsel referred the Committee to one analogous case: Ontario College of Teachers v. Worthy, 2015 LNONCTD 82. According to Member’s Counsel, the Committee should follow this precedent in which the member’s name was not published in Professionally Speaking/Pour parler profession. Member’s Counsel urged the Committee not to rely on the cases submitted by College Counsel, which were distinguishable on their facts given the more serious nature of the misconduct in those matters.

Reply Submissions of College Counsel

College Counsel replied to a number of the submissions made by Member’s Counsel, as follows. First, College Counsel responded to the submission of Member’s Counsel that the Member’s misconduct occurred many years ago. College Counsel noted that some of the Member’s misconduct occurred as recently as December 2013. This is not a historic case.

Second, College Counsel indicated that the submission of Member’s Counsel that the Member has been teaching “successfully” following his misconduct at issue is not supported by any evidence, aside from the fact that the Member continues to work for the same Board at a different school.

Third, College Counsel refuted the submission of Member’s Counsel that the Member’s actions were the result of lack of knowledge and understanding of Board policies and procedures. According to College Counsel, the Member’s ignorance is no excuse; he ought to have known that it is unacceptable to remove Board property and to transfer or scrap vehicles without authorization, and to leave the school property at an unscheduled time without permission.

Fourth, with respect to the submission of Member’s Counsel that no students were harmed by the Member’s conduct, College Counsel submitted that there were negative effects on the students as a result of the Member’s misuse and misappropriation of Board funds.

Fifth, College Counsel replied to the submission of Member’s Counsel that the Member has already suffered financial and career-related consequences for his actions. According to College Counsel, the Member’s Board-imposed discipline demonstrates the serious nature of his misconduct. College Counsel urged the Committee to publish the Member’s name in the College’s official publication in order to reassure the public that serious instances of professional misconduct will be met with serious consequences.

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 repeated unprofessional judgment, despite the discipline he received from the Board, 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 ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions moving forward in his career.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The Member’s disregard for his professional duties as a teacher of Transportation Technology and his poor management of resources within the program justify this decision. The serious and repeated nature of the Member’s misconduct outweighs the mitigating factors raised by Member’s Counsel.

Publication with the name of the Member identifies to the profession the consequences of such behaviour. It 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.

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

Date: April 21, 2016

Vicki Shannon, OCT

Chair, Discipline Panel

______________________________ Ann Ciaschini, OCT

Member, Discipline Panel

Jane Ishibashi

Member, Discipline Panel