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
Ken Ishwar Beebakhee, OCT, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair Ann Ciaschini, OCT Sara Nouini, OCT
BETWEEN: ) Christine Wadsworth, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo, ) Law Clerk – and – ) KEN ISHWAR BEEBAKHEE ) Andrea Wobick, (CERTIFICATE #404188) ) Ursel Phillips Fellows ) Hopkinson LLP, ) for Ken Ishwar Beebakhee ) Julie Maciura, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: January 14, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 14, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated April 2, 2013 (Exhibit 1) was served on Ken Ishwar Beebakhee (the “Member”), requesting his presence on May 6, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for January 14, 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 Teacher’s 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he failed to supervise adequately a student or students who were under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);
(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
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 as follows:
Ken Ishwar Beebakhee 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 respecting the Member.
The Member has been employed by the Toronto District School Board (the “Board”) as a teacher since 1998. He has taught at [XXX] (the “School”) in Toronto, Ontario since 2000, where he continues to teach currently. He is the [XXX] of [XXX] at the School.
During and including March 9, 2010 to March 18, 2010, the Member was a chaperone for a School trip to [XXX] through Education First Tours (“EF Tours”). The [XXX] students who were part of the trip were enrolled in Grades [XXX] and/or [XXX].
In addition to the [XXX] students, there were also two other groups of students from two different schools who attended the trip to [XXX] – a group from [XXX] ([XXX]) and a small group that attended from a school that is part of the [XXX] ([XXX]).
The group leader of the [XXX] group reported to the Board that she had concerns regarding the Member while on the trip to [XXX]. Attached to Exhibit 2 at Tab “B” is a copy of an e-mail communication she sent to the tour organizers on March 20, 2010 outlining her concerns.
The teacher chaperones accompanying the [XXX] students were interviewed by an investigator for the Board. Attached at Exhibit 2 at Tab “C” are the summaries of the Board Investigator’s interviews with the three [XXX] chaperones.
The Member does not contest that the Member’s group, including the students:
(a) purchased alcohol during the trip;
(b) consumed alcohol and beer throughout the trip;
(c) the students made too much noise and acted in a disruptive manner at the hotel(s) such that they would stay up until the early hours of the morning.
(d) the Member failed to adequately supervise the students from the School.
The Member was suspended without pay by the Board for six days, starting on September 23, 2010.
The Member has not been disciplined by the Board since that time.
PLEA OF NO CONTEST
By this document, the Member pleads no contest, for the purposes of this proceeding only, to the uncontested facts and the exhibits referred to in paragraphs 1 to 9 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(11), 1(15), 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 Statement of 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 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 counsel for the College and himself with respect to the penalty proposed 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.
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, circumstances and plea of no contest, 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 (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
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(11), 1(15), 1(18 – unprofessional) and 1(19).
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 9 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(11), 1(15), 1(18 – unprofessional) and 1(19).
Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member failed to supervise adequately a student or students who were under the professional supervision of the Member, contrary to Ontario Regulation 437/97, subsection 1(11).
Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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).
Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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).
Paragraph 7 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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 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 of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of six days, with such suspension being served from September 23, 2010 to September 30, 2010. The fact of the suspension set out in this paragraph is to be recorded on the Register immediately;
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 three months of the date of the Order of the Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundaries and boundary violation issues and regarding appropriate supervision of students, subject to the following conditions:
(i) the Member will provide to the course provider 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 Committee; and
(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider 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 provider which:
(i) confirms that the Member has successfully completed the course and reports 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 in Professionally Speaking/Pour parler profession is warranted in light of the Member’s misconduct in this case. Publication with name is an important deterrence tool. The Committee’s denunciation of the Member’s conduct through the publication of his name sends a strong message to the profession and the public that this type of behaviour will not be tolerated by the College. Moreover, publication with the Member’s name is important 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 stated that, in permitting their children to go on school trips, parents expect teachers manage student behaviour and to ensure the safety of their children. As chaperones, teachers act as role models and must set good examples for their students. When traveling, school groups are ambassadors for their school, their school board and their country. Since this case involves the Member’s misconduct in his role as a chaperone, publication with name will assist other members of the profession, should the Member ever be considered for a chaperone role in the future. College Counsel added that the repeated alcohol consumption by the Member and his group, which occurred throughout the trip, put student safety at risk and should be considered by the Committee as an aggravating factor.
College Counsel referred the Committee to four cases involving members’ failures to adequately supervise students: Ontario College of Teachers v. Powers, 2014 LNONCTD 111; Ontario College of Teachers v. Zagar, 2013 LNONCTD 104; Ontario College of Teachers v. Joly, 2013 LNONCTD 36; and Ontario College of Teachers v. Neumann, 2014 LNONCTD 23. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all instances.
Submissions of Member’s Counsel
Member’s Counsel submitted that the Committee has the discretion to order publication with or without the name of the Member and that in this case, publication with name is not warranted. The goals of the penalty, including specific deterrence, general deterrence, rehabilitation and transparency will be achieved without publishing the Member’s name, given the other proposed penalties, which include a reprimand, a retroactive suspension, a requirement that the Member successfully complete coursework, and publication of a summary of the Committee’s finding and order in Professionally Speaking/Pour parler profession, without including the Member’s name.
Member’s Counsel submitted that there are a number of mitigating factors that should dissuade the Committee from publishing the Member’s name. First, the Member has taken responsibility for his misconduct. This is evidenced by the fact that the Member came to an agreement with the College and spared any witnesses from having to testify at a lengthy hearing. Second, Member’s Counsel submitted that publication with name would unduly prejudice the Member who has successfully moved forward in his teaching career without further incident. Third, Member’s Counsel submitted that the Member’s misconduct was at the low end of the spectrum of professional misconduct. Fourth, a significant amount of time has passed since the misconduct occurred. Fifth, the Member has been employed by the Board for 18 years. Sixth, the Member has already served Board-imposed sanctions for his conduct. Seventh, Member’s Counsel submitted that there is no evidence before the Committee that student safety was impacted during the school trip, as suggested by College Counsel.
Member’s Counsel referred the Committee to four cases: Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97; Ontario College of Teachers v. McCalla, 2015 LNONCTD 53; Ontario College of Teachers v. Shuber, 2015 LNONCTD 6; and Ontario College of Teachers v. Trueman, 2014 LNONCTD 4. According to Member’s Counsel, the Committee should follow these precedents, some of which involve more serious misconduct and others which involve members who successfully rehabilitated their careers. In all of these cases, publication without name in Professionally Speaking/Pour parler profession was ordered.
Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of facts and should not be relied upon by the Committee. For example, Member’s Counsel submitted that some of the cases cited by College Counsel involved repeated misconduct over a period of time, whereas the events of this case occurred on a single school trip.
Member’s Counsel submitted that the public interest and the goal of transparency must be weighed against the Member’s privacy interests. The Member has worked hard to move past this incident and, since the jointly submitted penalty adequately meets the College’s objectives, there is no added value in publishing the Member’s name in the College’s official publication.
Reply Submissions of College Counsel
College Counsel replied to Member’s Counsel’s submission that the agreed upon penalty adequately meets the goals of the College. According to College Counsel, if publication without name were sufficient to satisfy the penalty objectives, publication with name would never be ordered. College Counsel also replied to the submission of Member’s Counsel that the passage of time should be considered a mitigating factor when the Committee determines the issue of publication with or without name. According to College Counsel, the delays in bringing cases to discipline occur for many reasons and this delay is not a compelling reason for the Committee to order publication without the Member’s name. In addition, College Counsel noted that the events in this case involved prolonged and repeated misconduct over the course of a ten day trip. Despite repeated complaints, the Member did not correct the students’ misbehaviour or his own.
Finally, College Counsel submitted that the cases submitted by Member’s Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.
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 conduct warrants a reprimand by his peers. The Committee is troubled that students in the Member’s charge, and the Member himself, purchased and consumed alcohol throughout the ten day trip. As a result, students made too much noise and acted in a disruptive manner and kept others at the hotel awake until the early hours of the morning. The reprimand will allow the Committee to directly address these concerns with the Member and will serve as a specific deterrent. Furthermore, recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
Given the serious nature of the Member’s misconduct, the Committee finds that a six day retroactive suspension is reasonable and appropriate, and it directs the Registrar to immediately record the fact of the suspension on the Member’s certificate. The Member has already served an unpaid suspension through the Board and has resumed his teaching career without further incident. An additional suspension is unnecessary as a specific deterrent in this case, but recording the fact of the suspension on the Register will serve as a general deterrent to other members of the teaching profession.
The Committee finds that the course of instruction regarding appropriate boundaries and boundary violation issues and appropriate supervision of students will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and the importance of effective supervision to ensure the safety and wellbeing of his students.
The Committee carefully considered the submissions of both parties regarding the issue of publication with or without the name of the Member and finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with name identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. The Committee determined that the aggravating factors, which include the use of alcohol, the Member’s repeated failure to supervise his students throughout the ten day trip, and the potential risk to student safety, outweighed the Member’s privacy interests and the other mitigating factors in this matter. Given the Member’s disregard for his important responsibilities as a chaperone, publication with name is appropriate in this matter.
Publication with name serves as a specific deterrent to the Member by holding the Member accountable for his actions. It also serves as a general deterrent by reminding the profession that similar behaviour will not be tolerated. The Committee accepts the submission of College Counsel that when teachers accompany students on school trips, the group members are ambassadors for their school, their school board and, in this case, their country. Publication with name reminds teachers of the importance of following the Board’s guidelines and code of conduct for both students and teachers on school trips of this nature. 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 21, 2016
Tom Potter
Chair, Discipline Panel
______________________________ Ann Ciaschini, OCT
Member, Discipline Panel
Sara Nouini, OCT
Member, Discipline Panel