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
Evgeny Kopylov, OCT, a member of the Ontario College of Teachers.
PANEL: Wes Vickers, OCT, Chair Irene Cheung, OCT Tom Potter
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
– and –
EVGENY KOPYLOV (CERTIFICATE #449018) Jerry Raso, Ontario English Catholic Teachers’ Association, for Evgeny Kopylov
Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: December 8, 2015
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 8, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated May 5, 2014 (Exhibit 1) was served on Evgeny Kopylov (the “Member”), requesting his presence on May 20, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 8, 2015.
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 signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
(c) 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);
(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:
Evgeny Kopylov is 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.
At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Dufferin-Peel Board”) as an Occasional Teacher. The Member had been an Occasional Teacher with the Dufferin-Peel Board since April 2008.
To maintain his position on the Occasional Teacher List with the Dufferin-Peel Board, the Member was required to teach the equivalent of at least seven full days every five months during the 2011-2012 and 2012-2013 academic years.
At all material times, the Member was employed by the Toronto Catholic District School Board (the “Toronto Board”) as a Long Term Occasional Teacher. He taught math and science for the Toronto Board for the entire 2011-2012 academic year.
During the 2011-2012 academic year, the Member took 11.5 “personal illness” days from his employment with the Toronto Board, in order to work as an occasional teacher for the Dufferin-Peel Board. He was paid by both boards for those 11.5 days.
In November 2012, the Member applied to the Dufferin-Peel Board for a Long Term Occasional Teaching position. Along with his application, he submitted his resume and letters of reference from two Toronto Board principals. These documents reflected the fact that the Member had been working as a Long Term Occasional Teacher with the Toronto Board during the 2011-2012 academic year.
The Member was questioned by Dufferin-Peel Board administrators about how he was able to complete a full-year Long Term Occasional teaching position with the Toronto Board, while continuing to remain on the Dufferin-Peel Board’s Occasional Teachers List. The Member explained that he had taken 11.5 days off from the Toronto Board to work for the Dufferin-Peel Board, in order to ensure that he would remain on the Dufferin-Peel Board’s Occasional Teachers List.
The Toronto Board removed the Member from its Long Term Occasional Teachers List for a period of three years. The Dufferin-Peel Board has removed the Member permanently from its Occasional Teacher List.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
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(12), 1(18) [unprofessional].
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 otherwise 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 his Counsel and Counsel for the College 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.
- 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
Counsel for the College requested that the allegation of professional misconduct outlined in paragraphs (c) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(15) and 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(12), and 1(18) [unprofessional].
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 8 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(12), and 1(18) [unprofessional].
Paragraphs 5, 6 and 7 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, 6 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12).
Paragraphs 5, 6 and 7 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 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:
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 that there be publication of the findings 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. Publication with the Member’s name addresses the principles of specific deterrence, general deterrence, transparency and accountability.
College Counsel submitted that when making an order to publish with or without the Member’s name, the Committee must consider the aggravating and mitigating factors in the case, the nature of the Member’s misconduct and the relevant case law submitted by the parties. In this case, the Member took 11.5 “personal illness” days off from his employment with the Toronto Board in order to maintain his employment with the Dufferin-Peel Board. During these absences, the Toronto Board was required to find a replacement teacher for the Member, leaving both the Member’s students and the Toronto Board “in the lurch”. Additionally, the Member was paid by both Boards for the 11.5 “personal illness” days. College Counsel urged the Committee to consider these aggravating factors.
College Counsel submitted that although this is not the most serious case of professional misconduct, it is still serious enough to warrant publication with the Member’s name. The Member engaged in unethical behaviour and publishing his name in Professionally Speaking/Pour parler profession will address the nature and consequences of his misconduct. Members of the teaching profession are role models in the community at all times.
College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name would satisfy the goals of transparency and accountability. Publishing the Member’s name in the College’s official publication assures the public and other members of the profession that matters before the Committee are appropriately resolved in an open and transparent manner and that the College does not shield its members from public scrutiny.
College Counsel urged the Committee to rely on two cases involving unethical behaviour of a member when determining the issue of publication: Ontario College of Teachers v. Callaghan, 2013 LNONCTD 13 and Ontario College of Teachers v. McLean, 2015 LNONCTD 5. According to College Counsel, these cases are similar to the Member’s case and 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 Member fully cooperated with the Toronto Board, the Dufferin-Peel Board and the College. The Member is not a permanent teacher and he needed to be absent from the Toronto Board in order to remain on the Dufferin-Peel Board Occasional Teachers List. The Member’s conduct was not ill-intentioned; he simply attempted to remain on the Dufferin-Peel Board Occasional Teachers List. Member’s Counsel submitted that the Member has since made full restitution in respect of the 11.5 “personal illness” absences to the Toronto Board.
Member’s Counsel submitted that the penalty objectives described by College Counsel are met without publishing the Member’s name in Professionally Speaking/Pour parler profession. Specific deterrence is achieved through the agreed upon penalty and by the disciplinary action that the Member has already received from the Toronto Board and the Dufferin-Peel Board. General deterrence is met without publishing the Member’s name because a summary of the Member’s case will still be published in the College’s official publication, even if the Member’s name is not included. According to Member’s Counsel, publishing the Member’s name adds no value to the proposed penalty and will only result in the public shaming of the Member.
Member’s Counsel further submitted that the cases presented by College Counsel were distinguishable and should not be relied on by the Committee because both cases involved members who received suspensions and were required to take coursework, unlike the Member who has already “paid the price” for his misconduct and faces lesser penalties.
Reply Submissions of College Counsel
Although College Counsel agreed with Member’s Counsel that the cases presented involved members who were both suspended and required to take coursework, she submitted that the Member’s misconduct in this matter is nevertheless serious. The Member repeated his unethical conduct 11.5 times and his conduct gave rise to a finding of professional misconduct. College Counsel submitted that if publication without the Member’s name is ordered, the public and the profession may view this type of misconduct as not being serious in nature.
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 misconduct 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 Member demonstrated a pattern of dishonest behaviour for personal gain, which warrants the publication of his name in Professionally Speaking/Pour parler profession. The Member intentionally took 11.5 “personal illness” days from his employment with the Toronto Board in order to maintain his position on the Occasional Teacher List with the Dufferin-Peel Board. The Committee is troubled that the Member was paid by both Boards for these days and it finds the Member’s conduct to have been deceitful and self-serving. The Member did not appear to show concern for the disruption that his repeated absences caused to either the Toronto Board or his students. These aggravating factors outweigh the mitigating factors presented by Member’s Counsel.
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. The Member’s unethical and dishonest conduct jeopardized the public’s perception of the teaching profession. 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: January 18, 2016
Wes Vickers, OCT Chair, Discipline Panel
Irene Cheung, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel