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
Ian David Luke, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Sara Nouini, OCT
Pauline Smart
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
IAN DAVID LUKE ) Ian David Luke,
(CERTIFICATE #149550) ) Self-represented and Not Present )
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: April 4, 2016
DECISION, REASONS FOR DECISION, AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 4, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated January 3, 2013 was served on Ian David Luke (the “Member”), requesting his attendance before the Committee on January 31, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for April 4, 2016.
The Member was not in attendance for the hearing and he did not have legal representation.
College Counsel submitted the Affidavit of Annie Lacroix (Exhibit 3) affirmed on March 31, 2016, to prove that the Member had been informed of the allegations against him and the time and date of the hearing. In her affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of the Notice of Hearing and the College’s disclosure. Based on Ms. Lacroix’s affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and disclosure documents and was deemed aware of the time and date of the hearing. Out of an abundance of caution, the Committee waited an additional twenty minutes before commencing the hearing on the merits. The Member did not attend. The Committee therefore heard this matter in the absence of the Member.
OVERVIEW
These proceedings arose as a result of several incidents involving the Member during the 2008-2009 and 2010-2011 academic years. At all material times, the Member was a shop teacher at [XXX] School in [XXX], Ontario (the “School”).
The Member’s alleged conduct falls into four general categories: 1) verbal abuse of students; 2) physical abuse of students; 3) psychological/emotional abuse of students, and 4) endangering the safety of students. In particular, the Member is first alleged to have yelled at a number of students and used profane language. Second, the Member is alleged to have taken hold of a student and pushed him onto the table portion of a table and thrown a number of objects at other students. Third, the Member is alleged to have abused a student psychologically and emotionally through his verbal abuse of that student. Fourth, the Member is alleged to have placed a student in a dangerous situation on two separate occasions.
The Committee’s task is to determine whether the facts alleged in the Notice of Hearing have been proven on a balance of probabilities, and if so, whether they give rise to a finding of professional misconduct. On April 4, 2016, the Committee made findings on all allegations set out in the Notice of Hearing and found the Member committed professional misconduct with written reasons to follow. The Committee also heard College Counsel’s penalty submissions. The Committee reserved its decision on penalty. The following are the Committee’s written reasons on finding and penalty.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Ian David Luke 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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);
(f) 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
(g) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Ian David Luke is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Upper Grand District School Board (the “Board”) as a teacher at [XXX] School.
On or about April 22, 2009, the Member took hold of Student 1 by the back of the neck, pushing his head against the table portion of a table saw, and yelled at him.
On or around May 28, 2009, the Member yelled loudly at Student 2 to “get off your ass and clean the fucking shop”.
During the 2010-2011 academic year, the Member:
(a) told a student or students to “shut the hell up”;
(b) referred to a student or students as “those little fuckers”;
(c) told a student or students they were “fucking useless”;
(d) threw a torch tip that hit Student 3;
(e) threw a torch at a table, which then hit Student 4 in the stomach;
(f) while using the shop grinder, instructed Student 5 to stand in front of the grinding table, causing sparks to hit Student 5 in the face;
(g) scratched the lenses on a pair of safety glasses and instructed Student 6 to wear them while using the plasma cutter.
MEMBER’S PLEA
As the Member was not present, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.
THE EVIDENCE
The College called the following three witnesses, two of whom were principals of the School at the material times and one of whom was a student in the Member’s class: Richard Goodbrand (“Mr. Goodbrand”), Brian Serafini (“Mr. Serafini”) and male Student 4 (as he is referred to in the Notice of Hearing)1 :
The Committee finds that all three College witnesses were credible. All three witnesses struck the Committee as honest and candid. They provided clear, cogent and convincing evidence about the Member’s conduct that they personally experienced, observed or learned about. Their evidence was internally and externally consistent, and it was not overstated or exaggerated.
Richard Goodbrand
Mr. Goodbrand is currently retired, but he was the principal of the School when the 2009 incidents set out in paragraphs 3 and 4 of the Notice of Hearing are alleged to have occurred. He testified that the Member took hold of a male student and pushed his head onto the table portion of a table saw and yelled at him and yelled at another student to “get off [his] ass and clean the fucking shop”, allegedly occurred. He testified about the Member’s admissions regarding the 2009 incidents. Mr. Goodbrand made contemporaneous notes of the three meetings he had with the Member in which the Member admitted to the misconduct alleged in paragraphs 3 and 4 of the Notice of Hearing. Mr. Goodbrand also testified regarding his investigation of the Member’s conduct and he also provided evidence regarding his views on the Member’s lack of professionalism.
Brian Serafini
Mr. Serafini was the principal of the School when the 2010-2011 incidents set out in paragraph 5 of the Notice of Hearing allegedly occurred. Mr. Serafini testified about his investigation into a report that the Member called a group of students “little fuckers.” Mr. Serafini testified that his investigation disclosed that in addition to the “little fuckers” comment, the Member used profanity, called students stupid and useless, threw objects at students and placed students in physical danger.
Student 4
In 2010-2011, Student 4 was a Grade [XXX] student in the Member’s shop class. Student 4 gave evidence regarding paragraph 5 of the Notice of Hearing. He testified that the Member called him and some of his friends “little fuckers.” He also testified that the Member called him “fucking clueless” in front of the class. He also testified that the Member threw a torch that ricocheted and hit him in the stomach. He also testified that he observed the Member instructing Student 5 to stand near a grinding machine on which the Member was grinding a piece of metal, which caused sparks to fly into Student 5’s face. He testified that he saw the Member scratch safety glasses and then instruct Student 5 to wear them while welding. Student 4 also testified about how the Member’s comments and actions made him feel.
In the reasons that follow, the Committee will highlight the key portions of the witnesses’ evidence in greater detail, to support its findings.
SUBMISSIONS OF COLLEGE COUNSEL ON FINDING
College Counsel submitted that it is “crystal clear” that: the Member failed to act professionally; committed numerous acts of professional misconduct, and all the allegations in the Notice of Hearing were supported by the evidence and should be found by the Committee.
According to College Counsel, the Member was verbally and physically abusive to Student 1 (paragraph 3 of the Notice of Hearing) when he yelled at him and pushed his face onto the table portion of a table saw. The Member was verbally abusive to a male student (paragraph 4 of the Notice of Hearing) when he yelled at him to “get off his ass and clean the fucking shop.” The Member was verbally and physically abusive to students by telling them to “shut the hell up”, referred to them as “little fuckers”, and called Student 4 “fucking useless” (paragraph 5 of the Notice of Hearing). The Member also placed Student 5 in unsafe situations (paragraph 5 of the Notice of Hearing) by instructing the student to stand near a grinding machine that the Member was operating, which caused sparks to fly into the student’s face and by purposefully scratching the student’s safety glasses and instructing him to use them while operating a machine.
College Counsel therefore submitted that the Committee ought to find the Member guilty of professional misconduct, in that his conduct contravened subsections 1(5), 1(7), 1(7.1), 1(7.2), (1(15), 1(18) and 1(19) of Ontario Regulation 437/97.
DECISION
Onus and Standard of Proof
The College bears the onus of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.
Decision
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, 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, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Committee carefully considered the College’s evidence and submissions when arriving at its decision that the Member is guilty of professional misconduct. The Committee recognizes that the College bears the burden of proof in this case, and that the Member’s decision not to attend the hearing has no bearing on the Committee’s determination of whether or not the College has proven its case.
The evidence before the Committee demonstrates that the allegations of professional misconduct contained in the Notice of Hearing have been proven on a balance of probabilities.
Paragraphs 3 and 4 of the Notice of Hearing (The Member physically and verbally abused Student 1 and verbally abused Student 2)
Mr. Goodbrand was the College’s only witness with respect to paragraphs 3 and 4 of the Notice of Hearing. The Committee places significant weight on the admissions against interest made by the Member during his meetings with Mr. Goodbrand regarding the incidents described in paragraphs 3 and 4 of the Notice of Hearing. The Committee recognizes that the rest of Mr. Goodbrand’s evidence was hearsay, but the Committee can rely on hearsay evidence in a disciplinary proceeding pursuant to section 15 of the Statutory Powers Procedure Act. The Committee finds that Mr. Goodbrand’s evidence, which included evidence that the Member admitted the conduct, is compelling proof of paragraphs 3 and 4 of the Notice of Hearing.
Paragraph 3 of the Notice of Hearing
The Committee finds that, on a balance of probabilities, the College has proven the allegations contained in paragraph 3 of the Notice of Hearing, namely that the Member took hold of a student by the back of the neck, pushed his head against the table portion of a table saw, and yelled at him.
In particular, Mr. Goodbrand testified, and the Committee finds, that on April 22, 2009 Mr. Goodbrand received information that the Member had been verbally and physically abusive to students in his class. As a result, Mr. Goodbrand interviewed some of the Member’s students. One student told Mr. Goodbrand that on April 22, 2009, the Member grabbed him by the back of the neck and pushed him onto the table portion of a table saw and that the Member screamed at him. Mr. Goodbrand also testified that the Member admitted this conduct during the April 23 and 30, 2009 meetings with Mr. Goodbrand.
The Committee finds that during the April 23, 2009 meeting, the Member admitted that he grabbed the student by the back of the neck and screamed at him (Exhibit 6). The Member claimed during this meeting that he had not forced the student down and that he had not applied “undue pressure” (Exhibit 6).
Based on Mr. Goodbrand’s testimony and notes of the meeting, the Committee finds that during the April 30, 2009 meeting, the Member admitted to holding a student on the table portion of the saw. The Member then told Mr. Goodbrand that he “would do it again.” The Superintendent of Education, who was also present at the meeting, cautioned the Member about making such a statement, but the Member repeated that he “would do it again” (Exhibit 9).
Based on Exhibit 8 and Mr. Goodbrand’s oral evidence, the Committee finds that Mr. Goodbrand and Vice-Principal Joan Arbuckle interviewed over fifty per cent of the Member’s class. According to Mr. Goodbrand’s account, the students invariably indicated that they saw the Member apply pressure to force the student’s head down on the table or table saw. The Committee finds that the students observed that the table saw blade was not running, but the machine was still plugged in. The Committee finds that the students interviewed observed that the Member was angry (Exhibit 8).
The Committee finds that as a result of the Member’s conduct, he was suspended for two school days (May 1, 2009 and May 4, 2009) without compensation. The Member was also warned that “…any further incident(s) of this nature will result in further discipline up to and including termination of your employment with the Board (Exhibit 10). The Member signed his discipline letter “for receipt only.”
Paragraph 4 of the Notice of Hearing
The Committee finds that, on a balance of probabilities, the College has proven the allegations in paragraph 4 of the Notice of Hearing, namely that the Member yelled at a student to “get off [his] ass and clean the fucking shop.”
In particular, Mr. Goodbrand testified and the Committee finds that after receiving a complaint that the Member had verbally intimidated a student, Mr. Goodbrand met with the Member on June 1, 2009. During the meeting, the Member said that he had been provoked by the student. The Member stated that the student was not doing any work and that there was a rule that everyone cleans up the shop at cleaning time. The Member said that he had repeatedly asked the student to clean up. Mr. Goodbrand testified and his notes indicate that the Member admitted that he told the student to “get off [his] ass and clean up fucking shop.” The Member also admitted that the Member was loud and angry. The student told Mr. Goodbrand that the Member told him to “fuck off.” The Member told Mr. Goodbrand that his comments were directed to the shop and not at the student when he said “fuck off”. The Member admitted that this was “probably not the best thing to say” (Exhibit 11).
The Committee finds that as a result of the Member’s conduct, he was suspended for four school days without compensation. The Member was also warned that “…any further incident(s) of this nature will result in further discipline up to and including termination of your employment with the Board” (Exhibit 12). The Member signed his discipline letter “for receipt only.”
Paragraph 5 of the Notice of Hearing (The Member used inappropriate language directed at students, threw objects at students and endangered students)
The Committee finds that, on a balance of probabilities, the College has proven the allegations set out in paragraph 5 of the Notice of Hearing.
The evidence tendered by the College with respect to particular 5 consisted of Mr. Serafini’s direct evidence regarding subparagraph 5(g) of the Notice of Hearing (Exhibit 4), hearsay evidence from Mr. Serafini, and Student 4’s oral evidence and his contemporaneous statement (Exhibit 5) regarding subparagraph 5(b), (c), (e), (f) and (g). As stated above, the Committee can rely on hearsay evidence in a discipline proceeding. The Committee places significant weight on Mr. Serafini’s evidence because it was corroborated by the physical evidence of the scratched glasses and photos of those glasses (Exhibit 4) and Student 4’s evidence. Student 4’s evidence came from personal interaction with the Member and his observation of the Member’s conduct in relation to Student 5. In addition, the Committee relied on Student 4’s contemporaneous written statement (Exhibit 5). The Committee finds that Mr. Serafini’s evidence coupled with Student 4’s evidence is compelling proof of paragraph 5 of the Notice of Hearing.
In particular, the Committee finds that Mr. Serafini was advised by Principal Designate Blake Storms that he had overheard the Member refer to a group of students as “little fuckers.” As a result of this information, Mr. Serafini interviewed some of the Member’s students, who confirmed the Member had used the phrase. The Committee finds that Student 4 was one of the students to whom the Member directed the comment. Mr. Serafini testified and the Committee finds that the Member also had occasionally said the word “fuck” in front of students, called students “stupid” and told them to “shut up.”
Mr. Serafini also testified, and the Committee finds, that Mr. Serafini learned through his investigation of the Member’s conduct that the Member had thrown three different objects (a tip of a torch, wood and a chair) at three different students.
Based on Mr. Serafini’s testimony, the Committee finds that Student 5 told Mr. Serafini that the Member ran the student’s safety glasses along a wall and then told Student 5 to wear them while operating the machinery. Student 5 told the Member that the glasses were scratched, that he could not see through them and that they were not safe to wear.
The Committee finds that as part of his investigation, Mr. Serafini obtained the safety glasses from Student 5. The Committee examined the safety glasses during the hearing although they were not received as an Exhibit. Exhibit 4 is a set of photographs of the safety glasses. The Committee finds that both lenses of the safety glasses were severely scratched and that the Member deliberately scratched them.
The Committee finds that Mr. Serafini eventually met with the Member regarding the incidents set out in paragraph 5 of the Notice of Hearing. The Member’s response to his alleged use of profanity, throwing objects and scuffing up the safety glasses was that he had no recollection of those things occurring.
Student 4 gave evidence in relation to subparagraphs 5(b), (c), (e), (f) and (g) of the Notice of Hearing.
Student 4 testified and the Committee finds that Student 4 was part of a group whom the Member called “little fuckers”. The Member also called Student 4 “fucking clueless” in front of the class.
Student 4 testified and the Committee finds that the Member threw a torch at a table. The torch then ricocheted off the table and hit Student 4 in the stomach.
The Committee finds that Student 4 was one of the students interviewed as part of Mr. Serafini’s investigation of the Member. Student 4 provided a statement as part of the investigation (Exhibit 5). He wrote the statement a few days after he was hit by the torch, which occurred in April 2011.
The Committee finds that Student 4 suffered lowered self-confidence as a result of the Member calling a group of students, including Student 4, “little fuckers”; being hit in the stomach by a torch thrown by the Member, and being called “fucking clueless.” Student 4 explained during his testimony that he was at school to learn and just because he did not learn the same as other students, the Member did not need to point this out. The Member’s words and actions occurred in front of other students. The Committee finds that all of the Member’s conduct made Student 4 “feel bad.”
The Committee finds that Student 4 also observed what occurred to Student 5. Student 4 testified that he was standing across the room and he saw Student 5 standing to the Member’s right as the Member was grinding a piece of metal in a vice. He saw sparks hit Student 5’s face. Student 4 spoke to Student 5 after the class to ask him what happened. Student 5 told Student 4 that the Member told him to stand where he did, so that is what he did.
The Committee finds that Student 4 saw the Member take Student 5’s safety glasses off. Student 4 then saw the Member rub the safety glasses on the bricks in the welding booth. Student 4 observed that the glasses were scratched. Student 4 also saw the Member hand the safety glasses back to Student 5 and say, “now try to weld.”
Conclusion: the Member’s conduct gives rise to a finding of professional misconduct
Based on its findings of fact outlined above, the Committee finds that the Member’s conduct gives rise to a finding of professional misconduct in that the Member contravened subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.
The Committee finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Member’s language was inappropriate and abusive of students. For example, he called a group of students “little fuckers” and yelled at students to “shut up”. He was verbally abusive to individual students by calling one student “fucking clueless” in front of the student’s class and by yelling at another student to “get off [his] ass and clean the fucking shop.”
The Member was physically abusive to a student by taking hold of his neck and pushing his face into the table surface of a table saw. He was physically abusive to another student by throwing a torch tip at him. He was physically abusive to Student 4 by throwing a torch which ricocheted off a table and hit the student in the stomach.
The Member endangered Student 5 by positioning him near a grinder while the Member ground a piece of metal, thus causing sparks to fly into the student’s face. He endangered the same student by deliberately scratching a pair of safety glasses and then instructing him to wear them for welding.
Finally, the Member’s language and his physical treatment of Student 4 led to psychological/emotional harm to Student 4 through the lowering of his self-confidence (Exhibit 5).
College Counsel urged the Committee to accept Mr. Goodbrand’s evidence that the Member’s conduct was unprofessional and inappropriate as evidence of the Member’s breach of professional standards. The Committee notes that Mr. Goodbrand was not qualified or offered as an expert witness by the College. As such, the Committee did not accept Mr. Goodbrand’s opinion regarding the Member’s conduct vis a vis standards of professionalism. However, even without Mr. Goodbrand’s opinion, the Committee finds that the totality of the Member’s conduct—his verbal abuse, including the use of profanity and demeaning terms directed at students, his physical abuse of students, his placement of students in harmful situations and his psychological/emotional abuse of students is sufficient evidence to demonstrate that the Member breached the standards of the profession. The Member was entrusted by parents with the safety, care and education of their children. His verbal, physical and psychological abuse of those students was a clear violation of his role as a teacher.
The Committee finds that the Member verbally abused students, contrary to subsection 1(7) of Ontario Regulation 437/97. The Committee finds that the Member’s language describing students and directed at students is abusive and disrespectful in any setting, but particularly egregious coming from a teacher in a classroom setting. Calling students “little fuckers”, telling students to “shut up”, calling Student 4 “fucking clueless” and “useless”, and yelling loudly at another student to “get off [his] ass and clean the fucking shop” is obviously unacceptable and reprehensible.
The Committee finds that the Member physically abused a student or students, contrary to subsection 1(7.1) of Ontario Regulation 437/97. The Committee finds that the Member taking hold of Student 1’s neck and pushing his head down on the table surface of a table saw is clear and compelling evidence of physical abuse. The Committee notes that while the blade was not running, so far as the students in the class knew the master switch was not turned off, which is a safety concern. In addition, the Committee finds that the Member threw objects at students on many occasions, including the tip of a torch that hit one student and a torch that ricocheted off a table and hit Student 4 in the stomach. The Committee notes that instructing Student 5 to stand near the grinding machine while the Member ground a piece of metal causing sparks to hit the student’s face was physically abusive and exposed that student to physical injury. The Committee finds the Member’s conduct in this regard troubling.
The Committee finds that the Member abused a student psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. As described above, the Member’s conduct had a significant effect on at least one of his students. The Committee finds that the language used by the Member in relation to Student 4 lowered his self-confidence and made him “feel bad.” In particular, he called Student 4 “fucking clueless” (Exhibit 5). Student 4 testified that just because he learned differently than other students it was no justification for the Member making those comments in front of his classmates. The Committee found this to be compelling evidence of the psychological and emotional effect that the Member’s conduct had on Student 4.
The Committee finds that the Member failed to comply with the Education Act, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Yelling loudly at one student to “get off [his] ass and clean the fucking shop”; telling students to “shut up”; referring to students as “little fuckers”; telling Student 4 that he was useless and “fucking clueless” in front of his classmates; physically abusing students; showing utter disregard for the safety of students entrusted to his care, and psychologically or emotionally abusing his at least one student is clear evidence of failure to comply with the duties of teachers set out in the Education Act.
The Committee finds that the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Committee finds that the totality of the Member’s misconduct, including his repeated verbal, physical, and psychological/emotional abuse of students even after being warned, was egregious. Calling students “little fuckers”, telling students to “shut up”, calling Student 4 “fucking clueless” and “useless”, and yelling loudly at a student to “get off [his] ass and clean the fucking shop” was disrespectful of his students and a reasonable member of the profession would find it disgraceful, dishonourable and unprofessional. Physically abusing students; showing utter disregard for the safety of students entrusted to his care, and psychologically or emotionally abusing his at least one student betrays the trust that students, and their parents place in teachers. A reasonable member of the profession would find the Member’s conduct in this regard disgraceful, dishonourable and unprofessional.
Finally, the Committee finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97 for the same reasons as set out above under the Member’s other breaches. The Committee finds that the Member’s misconduct occurred in two different academic years, involved multiple episodes and several students. The misconduct occurred after repeated warnings and two Board-imposed suspensions. The Member continued to blame his students for his misconduct and he repeated the statement that he would “do it again” despite being warned by a Superintendent about making such a statement. The Committee finds that all of these factors] are clear evidence of conduct unbecoming a member of the profession.
SUBMISSIONS OF COLLEGE COUNSEL ON PENALTY
College Counsel submitted that the Committee ought to order the following penalty:
revocation of the Member’s Certificate; and
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.
College Counsel pointed to a number of aggravating factors, which supported the College’s position on penalty:
the Member’s misconduct as found by the Committee was obviously egregious;
the Member’s conduct jeopardized student safety. He noted that as a shop teacher, the Member had a responsibility to protect his students and to ensure that they conducted themselves in a safe manner. He noted that despite this, the Member exposed several of his students directly to danger;
the misconduct spanned two academic years; they were not isolated incidents on an otherwise clean record. The Member’s misconduct involved multiple students and indicated that he targeted several students;
the Member had been warned to stop laying hands on students and to stop verbally abusing students (Exhibits 10 and 12). Despite the warnings, the Member repeated the incidents and, in fact, the misconduct escalated;
the Member never took responsibility for his actions. He blamed the students during the investigations;
the Member’s own admission was that he “would do it again” and he repeated this even after being cautioned not to say that. College Counsel noted that he, in fact, did do it again. College Counsel noted that in these circumstances, there is no evidence that the Member took any remedial course or offered to take such a course. College Counsel submitted that this ties into the Member blaming the students for his conduct. As such, there is no remedial course that would “fix things”; and
the Member showed no respect for the disciplinary process. His failure to respond to years of communication from College Counsel showed both a lack of respect for the process and a lack of remorse. College Counsel pointed to these factors as evidence that remedial measures would not assist the Member.
With respect to the issue of publication of the Member’s name, College Counsel submitted that the discipline process is a transparent one, which includes conducting open hearings. According to College Counsel there is no reason to withhold the publication of the Member’s name, which helps to ensure the transparency of the discipline process.
College Counsel presented the Committee with two cases in support of his proposed penalty: Ontario College of Teachers v. Foucault, 2015 LNONCTD 48(“Foucault”), and Ontario College of Teachers v. Biggs, 2014 LNONCTD 74 (“Biggs”). College Counsel submitted that these cases are not binding, but would help to guide the Committee’s determination of the appropriate penalty, as they support a penalty of revocation and publication of the Member’s name for similar types of misconduct. College Counsel also submitted that “like cases” should be treated alike noting that in his submission, the misconduct found by the committees in Foucault and Biggs was less egregious than the misconduct found by the Committee in this matter.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and
There shall 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.
REASONS FOR PENALTY
The Committee carefully considered the submissions of College Counsel with respect to penalty and reviewed the relevant jurisprudence provided. The Committee finds that the penalty outlined above satisfies the penalty objectives of general deterrence, specific deterrence, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member.
The aggravating factors in the Member’s case are significant. First, the Committee finds that the Member’s misconduct was egregious: he used language directed at and about students that was offensive and profane; he was physically and psychologically or emotionally abusive towards his students, and he endangered the safety of his students.
Second, the Committee finds that the Member committed physical, verbal and psychological or emotional abuse over the course of two academic years (2008-2009 and 2010-2011) involving multiple students and, in some instances, jeopardized student safety. The Committee is troubled by the Member’s conduct. The Member was entrusted with the safety and care of his students, and rather than ensuring that they were safe, he verbally, physically and psychologically or emotionally abused those students, and in some cases exposed the students to dangerous situations in the shop class.
Third, the Committee finds that much of this misconduct occurred after the Member was warned that his verbal and physical conduct towards students was unacceptable. The Member was suspended twice in 2009 as a result of the April 22 and May 28, 2009 incidents and, yet in 2010 he committed several more acts of verbal, physical and psychological or emotional abuse towards students.
Fourth, the Committee finds that the Member never took responsibility for his conduct. Instead, during the investigations about his conduct, he blamed the students. The Committee finds that this shows the Member lacks insight into his behaviour and his role as a teacher.
Fifth, the Committee finds as a significant aggravating factor the Member’s statement that he “would do it again”, which he repeated even after he was warned by a Superintendent.
Sixth, the Committee accepts College Counsel’s submission that in addition to twice saying that he “would do it again”, in fact, the Member did do it again in the 2010-2011 academic year and the misconduct escalated.
College Counsel urged the Committee to find that the Member’s failure to engage in the discipline process is also an aggravating factor. The Committee declines to accept that submission. Members are requested to attend hearings, but it is not a requirement. The Committee finds that although the Member’s absence deprives it of an explanation for the Member’s misconduct, his absence is neither an aggravating nor mitigating factor.
In Foucault, the Committee found that the Member had committed professional misconduct on the basis of his verbal, physical and psychological or emotional abuse of several students with special needs and had bullied work colleagues. As in Foucault, the Committee has found the Member’s misconduct to be egregious. The Committee adopts the reasoning set out in Foucault (at page 20) as it relates to the rationale for supporting revocation as the appropriate penalty for the Member:
The Committee finds that the Member’s conduct was egregious and that revocation is warranted, in this case, to meet the principles of specific deterrence, general deterrence and public protection. The Member, on numerous occasions, verbally, physically, and psychologically or emotionally abused several extremely vulnerable students with special needs, whose parents trusted that their children would be taken care of at school only to have that trust violated in the most reprehensible way.
Through his conduct, the Member has forfeited the privilege of holding a teaching Certificate in Ontario. He has repeatedly disregarded his professional obligations, and he has put at risk the physical and emotional safety of those entrusted to his care. Revocation, in this case, is proportionate to the Member’s misconduct.
In all the circumstances, the Committee finds that revocation of the Member’s Certificate is the appropriate penalty. The Member’s egregious misconduct spanned two academic years; involved multiple students; was repeated and escalated despite the Member receiving two warnings, and two Board-imposed suspensions. The Member’s behaviour showed disdain for his students’ physical and psychological or emotional well-being. The Committee has no evidence that the Member has shown remorse for his conduct or has any insight into his professional misconduct (i.e., he “would do it again” and then did). There is no evidence to suggest that there is any remedial measure or course that the Member could engage in that would satisfy the aims of the College’s regulatory process. Revocation of the Member’s Certificate is the only sanction that satisfies the College’s regulatory objectives of specific deterrence, general deterrence and protection of the public.
Finally, the Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted in this case. Publication with the Member’s name identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. 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.
Dated: June 15, 2016
Tom Potter
Chair, Discipline Panel
______________________________ Sara Nouini, OCT
Member, Discipline Panel
Pauline Smart
Member, Discipline Panel
In addition, Ms. Lacroix’s affidavit states that Students 5 and 6 in the Notice of Hearing are, in fact, the same student. (Exhibit 3, paragraph 21). In the Committee’s reasons, Students 5 and 6 will be referred to as Student 5.