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
Evan Law, OCT, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair Wes Vickers, OCT Marie-Claude Yaacov
BETWEEN: ) Ava Arbuck, ) McCarthy Tétrault LLP, ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers, ) assisted by Duane Crocker, – and – ) Law Clerk EVAN LAW ) Karen Ensslen, (CERTIFICATE #517026) ) Ursel Phillips Fellows ) Hopkinson LLP, ) for Evan Law ) Julie Maciura, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: July 8, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 8, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated August 28, 2013 (Exhibit 1) was served on Evan Law (the “Member”), requesting his presence on September 24, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for July 8, 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 Evan Law is guilty of professional misconduct as defined in subsection 30(2) of 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);
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
College Counsel 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:
Evan Law 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.
At all material times, the Member was employed by the Peel District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in Brampton, Ontario.
Inappropriate Conduct and Comments, September-October, 2011:
- In September 2011, the Member made several inappropriate racial comments or asked students inappropriate personal questions with racial overtones during his Grade [XXX] [XXX] class, which included:
(a) “if you dated a white guy would your mom smack you?”
(b) “do you wear towels around the house?”
(c) “do you eat white or brown food at home?”
(d) “do you guys still have arranged marriages?”
One day during a Grade [XXX] [XXX] class the Member was talking to a group of female students. He wrote down on paper a word that he had heard earlier in the hallway. He didn’t know what it meant, questioned whether it was inappropriate, and asked the students if they knew what it meant. When they told him they did not know, he asked two male students in the class what the word meant. One of the male students said it meant “sister fucker” in Punjabi, and if you added another letter, it meant “mother fucker.”
On one occasion while the Member was teaching a lesson at the front of his classroom, he stopped, walked to the back of the classroom, and whispered into the ear of a female student, “hey, how are you doing, your shirt button is unloose.” The student, embarrassed, immediately buttoned up her shirt, while the Member returned to the front of the room and continued the lesson.
On September 19, 2011, the Member asked his Grade [XXX] [XXX] class who was coming to Parent Night. Only a few students raised their hands. The Member took one of the student who had raised her hand into the hall and questioned her about what her mother looked like and what she would ask him.
On or about September 21, 2011, at the School’s Parent Night, the principal received a complaint about the Member’s comments and conduct from the parent of a female student in the Member’s Grade [XXX] [XXX] class.
The Member and his representative met with the Superintendent of Education and the principal on September 22, 2011 to discuss the reported inappropriate comments and conduct. On October 19, 2011, the Member received a Letter of Expectation from Board administrators. A number of expectations were set out in the letter, including the expectation that the Member would attend one-to-one professional development and sensitivity training with an external consultant, to be completed by the end of November 2011. Attached hereto and marked as Exhibit “B” is a copy of the Board’s Letter of Expectation dated October 19, 2011.
The Member attended a workshop on professional boundaries presented by Ontario Secondary School Teacher’s Federation on November 4, 2011, and attended a one-to-one training session on professional boundaries with a member of the Board on November 28, 2011.
Inappropriate Conduct and Comments, November-December 2011:
In December 2011, the Member initiated a Secret Santa draw in class and included himself in the draw. When students received their Secret Santa names, they started switching names with each other to get the name of a friend in the class.
One of the students found out that her friend had drawn her name. She observed the Member switch Secret Santa names with her friend, then saw the Member open the piece of paper he received from her friend. After reading the paper, the Member pretended to be disappointed in a joking fashion. Because she believed the Member had become disappointed after reading her name, and because she felt awkward about receiving a gift from her teacher, she asked to withdraw from the game. The Member told her that her withdrawal would ruin the game. She offered to give her Secret Santa name to the person who had drawn her name, so the game would work out. The Member crumpled up his piece of paper and threw it in the garbage. He told her, “I had your name.” The student told administrators that she felt even worse at that point because she believed that the Member had confirmed that his apparent disappointment was the result of reading her name on the piece of paper.
The Member heard that a female student in his Grade [XXX] [XXX] class was going to [XXX] with her family. He asked her to buy him something in [XXX], gave her $10.00, and continued to ask her whether she needed more money. She told administrators that the Member’s request and his giving her money made her feel uncomfortable.
On several occasions the Member would swear in class, usually under his breath. The Member did not swear at any students directly.
On at least two occasions the Member used inappropriate or rude gestures in class, attempting to be funny. Some students were offended by his behaviour.
The Member asked two female students whether they were treated differently because of their skin colour. He asked other students whether they fought each other because of their different religions.
One student brought one of her [XXX] to class one day. The Member said he liked it and asked the student to [XXX] for his new living room, as he was in the process of moving. She agreed, but given her work load, was not able to complete it quickly. Before she had completed the Member’s [XXX], she asked the Member for a reference to allow her to go on a [XXX]. He told her he would provide her with a good reference only if she completed the [XXX]. She eventually provided him with a different [XXX] she had already completed.
On December 13, 2011, three female students from one of the Member’s Grade [XXX] [XXX] classes approached the School administration to report that the Member’s recent comments and behaviour had made them feel uncomfortable in his class.
The Member was assigned home with pay and benefits, effective December 14, 2011. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter to the Member advising him of this fact.
The Member and his representative met with administrators in April 2012, at which time administrators reviewed their findings. The Member said he never intended to make any students feel uncomfortable. Although he recognized that some of his conversations with students were inappropriate, he thought some of his conduct and comments may have been misinterpreted. The Member acknowledged a need for improvement in this area and felt that he was not ready to return to the classroom.
On May 10, 2012, the Member received a Letter of Discipline from the Board advising him that he was suspended for one day without pay effective May 9, 2012, as a result of his “inappropriate behaviour.” In addition, effective May 10, 2012, the Member was transferred to another school “due to the impact of [his] behaviour on the students” at the School. Attached hereto and marked as Exhibit “D” is a copy of the Board’s Letter of Discipline, dated May 10, 2012.
Since December 2011, the Member has received no further discipline or complaints about his conduct. He has taught successfully since his transfer in May 2012.
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(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 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 the parties 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.
- 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 allegations of professional misconduct outlined in paragraphs (b), (c) and a portion of paragraph (e) of the Notice of Hearing, namely that the Member contravened subsections 1(7), 1(7.2) and 1(18) [disgraceful or dishonourable] 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(15), 1(18) [unprofessional] and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 21 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(15), 1(18) [unprofessional] and 1(19).
Paragraphs 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 17 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 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 17 of the Agreement 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) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 17 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).
Paragraphs 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 17 of the Agreed Statement of Facts and Guilty Plea 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 of the Ontario College of Teachers (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 professional boundaries with students, subject to the following conditions;
(i) the Member will provide to a course practitioner approved by the Registrar, 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;
(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.
- There shall 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 the objectives of penalty include protecting the public, ensuring the high standards of the profession and maintaining public confidence in the profession. The principles which underline the penalty sought include specific deterrence, general deterrence, rehabilitation and remediation of the Member.
College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with name is one the most important tools that the Committee has to provide deterrence. It sends a strong message to the Member, the profession and the public that this type of behaviour is not tolerated. Publication with name also promotes the transparency of the College’s discipline process, which fosters public trust in the process.
College Counsel noted that the Committee has the discretion to order publication with or without the name of the Member, but submitted that publication with name was appropriate in this case. The Member’s misconduct was serious and it involved repeated inappropriate comments and interactions with students. Teachers are expected to be role models at all times and the public needs to be confident that teachers are meeting this expectation, especially after a teacher has been previously warned about similar inappropriate conduct and has attended workshops to address this behaviour.
Following a number of issues with the Member’s conduct, the Board advised the Member to respect the standards of practice of the teaching profession. Nevertheless, one month after the Board reinforced its expectations with the Member, his inappropriate conduct continued. Consequently, the Board found it necessary to apply further sanctions including a one day suspension and transfer to another school. College Counsel submitted that the Member’s failure to remedy his behaviour, despite the Board’s involvement, is an important reason for the Committee to order publication with name. College Counsel also highlighted the serious nature of the Member’s misconduct.
College Counsel referred the Committee to three analogous cases in which publication with name was ordered: Ontario College of Teachers v. Williams, (10 May 2016); Ontario College of Teachers v. Gal, 2014 LNONCTD 46 and Ontario College of Teachers v. Thompson, 2014 LNONCTD 67. The cases were described as similar but not identical to the matter under consideration.
Submissions of Member’s Counsel
Member’s Counsel submitted that in this case, publication with name was not in the public interest and reminded the Committee of its discretion with regard to publication orders. According to Member’s Counsel, the public interest is concerned with not just penalty but also rehabilitation. In this respect, the Committee was advised to balance the nature of the misconduct, the Member’s professional record and the value of publication with name as a deterrent for the Member and for the protection of the public. In addition, Member’s Counsel pointed to the Member’s privacy rights and the potential harm that publication with name might cause the Member. Specifically, publication with name in the College’s official publication would cause stigma for the Member and impair his personal and professional relationships. It might also affect his standing in his community.
Member’s Counsel further submitted that publication with name was unnecessary in this case, and was of no added value. According to Member’s Counsel, the objectives of penalty would be achieved without publishing the Member’s name. The reprimand and coursework would serve as a specific deterrent; the posting of the Committee’s decision on the College’s website would serve as a general deterrent, as would recording the fact of the reprimand on the public register; and, publishing a summary of the Committee’s finding and order in the College’s official publication (even without the Member’s name) would satisfy the College’s transparency objectives.
Member’s Counsel urged the Committee to consider a number of mitigating factors in this case, including the following: the Member’s misconduct occurred approximately five years ago; the Member has accepted the consequences and discipline of his Board; he has successfully taken steps to reform his professional practice since 2011 (as evidenced by his 2014 Summative Report Form for Experienced Teachers); his conduct was at the lower end of the spectrum of professional misconduct and consisted of a series of errors in judgement which were manifested as inappropriate comments on various occasions and which made his students feel uncomfortable; there was no evidence that the Member intended to demean his students, and he did not yell at them; the Member did not assault or abuse students; his misconduct did not occur over a prolonged period of time; there was no indication that his conduct had a profound impact on students; and, the Member has returned to teaching without incident following the events that gave rise to this hearing.
Counsel for the Member referred the Committee to five analogous cases in which publication with name was not ordered: 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. Nakliki, 2015 LNONCTD 54; and Ontario College of Teachers v. Schuber, 2015 LNONCTD 6. Member’s Counsel urged the Committee to follow these similar precedents.
Reply Submissions of College Counsel
In reply, College Counsel submitted that it is in the public interest that the professional misconduct in this case be dealt with in an open and transparent way, which would be achieved by publishing the Member’s name in Professionally Speaking/Pour parler profession. According to College Counsel, the purpose of publishing the Member’s name is not to punish him, but rather to deter others from engaging in similar conduct. It is important that the profession is advised about what constitutes professional misconduct and who committed it. College Counsel acknowledged that publication with name is embarrassing for members, but noted that this is the very thing which makes it effective as a deterrent.
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 pattern of inappropriate conduct, despite having received warnings 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 professional boundaries with students 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 in any future interactions with students.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The Committee recognizes that it has the discretion to order publication with or without the Member’s name. In arriving at its decision to publish the Member’s name, the Committee carefully considered the evidence and submissions of the parties and it weighed the mitigating and aggravating factors in this case.
The Committee looked favourably on the evidence that the Member has made significant progress in his professional practice and has achieved several years of successful teaching since the events which brought him to this hearing. His 2014 Summative Report provided the Committee with some comfort that, since the events in question, not only has the Member met expectations regarding instructional skills, but he has also built classroom rapport while maintaining professional boundaries with students.
The Committee also considered that there was no evidence that the Member intended to demean, insult or abuse students. The behaviour in question occurred relatively early in the Member’s career. No student was singled out for mistreatment. While many students were made to feel uncomfortable by the Member, there was no evidence of prolonged harm to his students. The Member appears to be remorseful and to have accepted responsibility for his past misconduct.
Notwithstanding these mitigating circumstances, the Committee finds that the aggravating factors have outweighed the mitigating factors in this case. While the Committee did not view the Member’s conduct at the highest end of the spectrum of professional misconduct, it was still regarded as serious. The Member’s behaviour as outlined in the Agreed Statement of Facts was racially tinged, insensitive to the feelings of his adolescent students, disrespectful to a parent, involved multiple students over several incidents and incurred complaints by students and parents to administration followed by the Letter of Expectation from his Board dated October 19, 2011. Yet, despite this admonition and despite having attended a workshop on professional boundaries and having received a one-to-one training session on professional boundaries with a member of the Board, the Member’s inappropriate conduct continued. In December of the same year, several more students complained to administration about the Member’s behaviour.
Based on the frequency and seriousness of the Member’s conduct in December 2011, as set out in the Agreed Statement of Facts, it was clear to the Committee that the Member had either not taken his earlier admonishment seriously or, that he simply failed to appreciate the seriousness of his misconduct. While all of the episodes of misconduct from December 2011 troubled the Committee, it was particularly worrisome that the Member abused his authority as a teacher by requiring that his letter of reference for one of his student was contingent on his receiving a personal benefit from the student. In addition, the Member continued to cross professional boundaries with a number of other students in December 2011.
Ultimately, the profession must be made aware that when teachers repeatedly fail to maintain appropriate professional boundaries with students, when they abuse their authority by coercing students for personal gain, and when these issues persist despite receiving remedial support from their employers, their names should not be shielded from public scrutiny. While the order for publication with name is not intended to cause shame to the Member, if this is the result, it has been brought on the Member by his own conduct.
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: July 27, 2016
Tom Potter
Chair, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel
Marie-Claude Yaacov
Member, Discipline Panel