Ontario College of Teachers v. Kissel, 2016 ONOCT 28

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kissel, 2016 ONOCT 28

Date: 2016-06-14

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 Mark Andrew Kissel, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair Jane Ishibashi Sara Nouini, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS – and – MARK ANDREW KISSEL (CERTIFICATE #453835)

Counsel: Christine Wadsworth, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Duane Crocker, Law Clerk Susan Luft, Ontario Secondary School Teachers’ Federation, for Mark Andrew Kissel Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: June 13, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 13, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 10, 2014 (Exhibit 1) was served on Mark Andrew Kissel (the “Member”), requesting his presence on February 4, 2014, to set a date for hearing, and specifying the charges. The hearing was subsequently set for June 13, 2016.

The Member was not in attendance for the hearing but 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) 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).

STATEMENT OF UNCONTESTED FACTS

College Counsel 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:

1. Mark Andrew Kissel is 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 an employee of the Toronto District School Board (the “Board”) and was a teacher at [XXX] (the “School”) in Toronto, Ontario.

3. During the 2011-2012 academic year, the Member taught [XXX].

May 2012

4. A group of students from the School were involved in a [XXX] cultural exchange with a group of students from [XXX] in [XXX]. The Toronto students visited [XXX] from May 18-24, 2012. The Member was involved in organizing the trip and, along with a colleague from the School, accompanied the Toronto students to [XXX].

5. On the second morning of the trip, the students travelled by bus to the [XXX]. The Member made it clear to all the students that they needed to stay on schedule to accomplish everything planned for the day. He told them the specific time they needed to board the bus to make it to their next planned attraction. All agreed to the time, and left the bus to explore the area.

6. Everyone started to board the bus at the agreed time of departure, with the exception of five students. This group of students walked across the highway, up a small embankment, and appeared to be watching the other students board the bus. One of the group of five students later explained that this group began to build an [XXX] as the rest of the students were making their way to the bus.

7. The Member completed a head count of the group on the bus. The five students across the highway had not yet boarded the bus. The Member went to the door of the bus and motioned to the students to come onto the bus. The five students watched, but made no attempt to cross the street and board the bus.

8. The Member requested that the bus driver move the bus down to the exit of the parking lot to wait for the five students. When the bus stopped at the exit, only one of the five students had climbed down the embankment. The Member requested that the driver move the bus onto the highway and a little further south.

9. As she did so, one of the students ran to the bus and boarded the bus. The driver stopped and the student boarded the bus. The other four students were walking slowly towards the bus. The Member requested the driver to move the bus a little further down the highway, and when it was safe to do so, to turn the bus back around towards the [XXX]. The driver drove until she reached a safe spot to turn the bus around, which was a couple of kilometers down the highway, around a curve and out of the four students’ sight. Then she proceeded back toward the [XXX]. It took the driver approximately 7-8 minutes to turn the bus around and return to the students.

10. As the bus approached the corner right before the [XXX], the four remaining students held hands and stood across the middle of the highway. This action forced the bus driver to apply the brakes quickly and veer the bus away from them. The students separated and ran to the sides of the highway. The driver drove into the [XXX] parking lot. The Member got off the bus to talk to the students who, at this point, were walking towards the bus. One of the students was extremely upset, swearing and cursing that the bus had driven off without them. In speaking with the four students, the Member said words to the effect of, “when I say get on the f’ing bus, I mean get on the f’ing bus, so get on the f’ing bus.”

11. At the end of the day, the Member thanked the bus driver and apologized for the incident.

12. Upon completion of the Board’s investigation, the Member received a two-day unpaid suspension.

PLEA OF NO CONTEST

13. 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”).

14. 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(7), 1(7.2), 1(15), 1(18) and 1(19).

15. 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 him and counsel for the College 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.

16. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise 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.

17. In light of the Uncontested Facts and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member to be guilty of professional misconduct.

DECISION

Having considered the Statement of Uncontested Facts and Plea of No Contest, and the submissions of the parties, 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 did not contest the truth of the facts and exhibits referred to in paragraphs 1 to 12 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(7), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 8, 9 and 10 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).

Paragraph 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 8, 9 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member psychologically or emotionally abused a student or students contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 8, 9 and 10 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 8, 9 and 10 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 disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 8, 9 and 10 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), College Counsel 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 Discipline Committee within 90 days of the date of this Order, on a date to be arranged by the Member, 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 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 classroom management and student supervision, 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.

3. direct that there 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.

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 conduct, which demonstrated a lack of judgment and professionalism, warrants a reprimand by his peers. Teachers are expected to model appropriate behaviour to students, including on field trips. When teachers accompany and supervise students on field trips, both teachers and their school groups are ambassadors for the school, the board, the city and the province. The Member fell short in his responsibility as a leader and a role model. 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 classroom management and student supervision 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 learning environment at all times and that he prioritizes student safety, both within the classroom and on field trips. This rehabilitative measure is important as it demonstrates that the College and its members are committed to remedying inappropriate and unprofessional conduct, which should inspire public confidence in the disciplinary process.

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.

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

Date: June 14, 2016

Tom Potter Chair, Discipline Panel

Jane Ishibashi Member, Discipline Panel

Sara Nouini, OCT Member, Discipline Panel