Ontario College of Teachers v. Robertson, 2016 ONOCT 45

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Robertson, 2016 ONOCT 45

Date: 2016-05-13

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 Peter Daniel Robertson, OCT, a member of the Ontario College of Teachers.

PANEL: Shanlee Linton, OCT, Chair Jean-Luc Bernard, OCT Marie-Claude Yaacov

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

– and –

PETER DANIEL ROBERTSON (CERTIFICATE #259315) Josh Phillips and Robert Whillans, Ursel Phillips Fellows Hopkinson LLP, for Peter Daniel Robertson

Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: June 15, 2015 and April 28, 2016

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the "Committee") on June 15, 2015 at the Ontario College of Teachers (the "College") at Toronto.

A Notice of Hearing (Exhibit 1), dated March 12, 2013 was served on Peter Daniel Robertson (the "Member"), requesting his presence on May 6, 2013 to set a date for hearing, and specifying the charges.

The hearing concluded on April 28, 2016.

The Member was not in attendance for the hearing on June 15, 2015 but had legal representation. The Member was in attendance for the hearing on April 28, 2016 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 subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the "Act") in that:

a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

c) he abused a student or students physically contrary to Ontario Regulation 437/97, subsection 1(7.1);

d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

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).

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 as follows:

1. Peter Daniel Robertson 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 respecting the Member.

2. During the 2010-2011 academic year, the Member was employed by the Hamilton-Wentworth District School Board as a teacher at [XXX] School in Hamilton, Ontario.

3. During the 2010-2011 academic year, the Member made inappropriate physical contact with students in his class, which contact made the students uncomfortable.

4. During the 2010-2011 academic year, the Member made inappropriate comments to a female student, which comments made the student feel uncomfortable.

5. During the 2010-2011 academic year, the Member had inappropriate physical contact with, and made inappropriate comments to, a female colleague which, while not intended by the Member to be sexual in nature, were interpreted by the female colleague as sexual in nature and made the female colleague uncomfortable.

Guilty Plea

6. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the "Admitted Facts").

7. 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(7.1), 1(15), 1(18), and 1(19).

8. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

In light of the Admitted Facts and 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

College Counsel sought to withdraw the allegations of professional misconduct outlined in paragraphs (b) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7) and 1(7.3) of Ontario Regulation 437/97. 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(7.1), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 5 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 professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15), 1(18) and 1(19).

Paragraphs 3, 4 and 5 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).

Paragraph 3 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraphs 3, 4 and 5 of the Agreed Statement 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)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 3, 4 and 5 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 disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 3, 4 and 5 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), College Counsel and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member appear before the 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 St. West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the "Register");

2. direct the Registrar 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 120 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 appropriate professional boundaries, subject to the following conditions;

(i) the Member will provide to a course provider approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and the 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 provider 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 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:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

3. direct that there be publication of the finding and order of the Committee in summary form 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 RE: PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member serves as a specific deterrent to the Member and a general deterrent to the profession. College Counsel acknowledged that the Committee has discretion regarding the publication of the Member's name, but that the Committee should exercise its discretion to publish the Member's name. College Counsel argued that teachers are role models for students. According to College Counsel, the Member's inappropriate physical contact with students and a colleague and his inappropriate comments to a female student and to the same colleague were serious and not isolated incidents. The students and the colleague were all made uncomfortable by the Member's repeated misconduct.

Publication of the Member's name, according to College Counsel, will ensure that the Member is held accountable for his actions and will remind the profession that such behaviour is not tolerated. According to College Counsel, publication of members' names is embarrassing, but that is why publication of names is one of the most important "tools" that the Discipline Committee has and why it is such an effective specific and general deterrent. Moreover, publication of 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.

College Counsel referred the Committee to four cases (Ontario College of Teachers v. Hockin, 2015 LNONCTD 26; Ontario College of Teachers v. Harkes, 2015 LNONCTD 95; Ontario College of Teachers v. Kolos, 2015 LNONCTD 96, and Ontario College of Teachers v. Winer, 2015 LNONCTD 101) which contain facts regarding inappropriate physical contact with and comments made towards students and colleagues. College Counsel submitted that the facts in those cases were similar to the facts before the Committee and publication with name was ordered in those instances.

Submissions of Member's Counsel

Counsel for the Member submitted that publication with the name of the Member is not necessary in this case. Counsel for the Member submitted that the Committee has discretion regarding publication of name. Counsel for the Member argued that the penalty, including publication of name, should be proportionate to the misconduct found by the Committee. Counsel for the Member submitted that there were a number of mitigating factors which weigh against publication of the Member's name: the Member's otherwise unblemished record with the College and as an employee with the Board; the Member had signed an agreement with the College in which he admitted responsibility for his misconduct and gave up his right to a hearing, thus saving College resources and obviating the need for the students and the Member's colleague to testify; the misconduct occurred in 2010-2011 and there was no evidence of any other problems with the Board or the College since that time, and, without trivializing the misconduct, it was on the low end of the spectrum.

Counsel for the Member submitted that the cases relied upon by College Counsel were distinguishable on their facts.

Counsel for the Member referred the Committee to three cases (Ontario College of Teachers v. Milsap, 2013 LNONCTD 52; Ontario College of Teachers v. Brame, 2014 LNONCTD 76, and Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97) where the misconduct was more serious than what was found by the Committee and where publication without name was ordered in the circumstances.

Reply Submissions of Counsel for the College

In reply, College Counsel submitted that the Member's misconduct was serious. According to College Counsel, in considering proportionality, the Committee should consider the number of parties affected, the duration of the misconduct and the principles of sentencing, including the need for specific deterrence, general deterrence, rehabilitation and remediation, public protection and transparency of the discipline process.

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 the case.

The Member's pattern of inappropriate physical contact with students and a colleague, and his inappropriate comments made to a female student and the same colleague, warrant 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 course of instruction regarding appropriate professional boundaries 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 and colleagues.

The Committee finds that publication with the Member's name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies to the profession the serious nature of the Member's misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member's name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.

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

Date: May 13, 2016

Shanlee Linton, OCT Chair, Discipline Panel

Jean-Luc Bernard, OCT Member, Discipline Panel

Marie-Claude Yaacov Member, Discipline Panel