Ontario College of Teachers v Shackleton, 2016 ONOCT 47

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Shackleton, 2016 ONOCT 47

Date: 2016-03-03

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

David Norman Shackleton, OCT, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair Jean-Luc Bernard, OCT Ann Ciaschini, OCT

BETWEEN: ) Zirka Jakibchuk, ) Legal Counsel, ) for Ontario College of Teachers

ONTARIO COLLEGE OF TEACHERS )

– and – )

DAVID NORMAN SHACKLETON ) Robyn White, (CERTIFICATE #438357) ) Cavalluzzo Shilton McIntyre ) Cornish LLP, ) for David Norman Shackleton

) Marc Spector, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: February 19, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 19, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated October 27, 2015 (Exhibit 1) was served on David Norman Shackleton (the “Member”), requesting his presence on November 30, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 19, 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 or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15); and

(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

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:

1. David Norman Shackleton is and 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 with respect to the Member.

2. At all material times, the Member was employed by the Peel District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Mississauga, Ontario.

3. During the 2014-2015 academic year, Student 1 was a [XXX] female student at the School. The Member was not assigned to teach Student 1.

4. On or about October 27, 2014, the Member had inappropriate physical contact with Student 1, when he made brief contact with her backpack in an attempt to move her.

5. In addition, the Member did not provide support to Student 1 on the day that she reported being called [XXX] by two students. The Member was assigned to home the following day.

6. The Board suspended the Member for 3 days without pay. Attached to Exhibit 2 at Tab “B” is a copy of the disciplinary letter from the Board to the Member dated January 7, 2015.

PLEA OF NO CONTEST

7. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”).

8. 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(15) and 1(18) [unprofessional].

9. 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 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 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 in this document does not bind the Discipline Committee; and

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

10. In light of the Uncontested Facts and circumstances and the 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(7.1) 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(15) and 1(18) [unprofessional].

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 of the Statement of Uncontested Facts and Plea of No Contest and he 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, subsections1(5), 1(15) and 1(18) [unprofessional].

Paragraphs 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, failed to comply with the Education Act, and 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(5), 1(15) and 1(18) [unprofessional].

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:

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 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”);

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 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course(s) of instruction, pre-approved by the Registrar regarding appropriate disciplinary strategies and sensitivity training;

(b) within 30 days of his completion of the course(s) outlined in (a) above, the Member shall provide to the Registrar a written certificate from each of the course providers stating that:

(i) he or she has reviewed 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 Discipline Committee; and

(ii) the Member has successfully completed the course(s).

3. direct that there be publication of the findings and Order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that the nature of the Member’s misconduct is serious and warrants publication of the Member’s name. The Member made inappropriate physical contact with and failed to provide emotional support to a young student. College Counsel submitted that publication with name addresses the principles of specific deterrence, general deterrence, transparency and accountability. Publication with name acts as a specific deterrent to the Member and a general deterrent to the profession as it informs the Member and the profession that this type of misconduct is taken seriously and that it will be addressed appropriately by the College.

College Counsel noted that the Board took disciplinary action in relation to the Member’s misconduct and suspended him for three days without pay. According to College Counsel, the Member had also been disciplined by his Board on three different occasions between 2011 and 2013 as a result of issues relating to inappropriate physical contact, the maintenance of appropriate boundaries, and his care for students’ wellbeing. College Counsel submitted that, given the past discipline record of the Member, the penalty as agreed to, without publication of the Member’s name, was not a sufficient specific deterrent for the Member.

Furthermore, College Counsel submitted that publication with name achieves the penalty objectives of transparency and accountability by informing the profession and the public that the College does not shield its members from public scrutiny when a member engages in professional misconduct. According to College Counsel, the Committee ought to order publication with the Member’s name given that this is not an exceptional case and because there is no good reason not to publish the Member’s name.

College Counsel referred the Committee to five cases which involved inappropriate physical contact by a member towards students: Ontario College of Teachers v. Jarzylo, 2014 LNONCTD 16 (“Jarzylo”); Ontario College of Teachers v. Berlin, 2015 LNONCTD 61 (“Berlin”); Ontario College of Teachers v. Reeds Alexander, 2014 LNONCTD 112 (“Reeds Alexander”); Ontario College of Teachers v. Gedies (30 November 2015) (“Gedies”); and Ontario College of Teachers v. Horsford, 2015 LNONCTD 67 (“Horsford”).

College Counsel submitted that the first three cases (Jarzylo, Berlin and Reeds Alexander) involved similar misconduct to that of the Member and resulted in similar penalties, which included publication with name. College Counsel presented Horsford and Gedies to illustrate that publication with name could be ordered even when a member’s conduct is at the low end of the spectrum of professional misconduct.

Submissions of Member’s Counsel

Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. According to Member’s Counsel, the Committee has the discretion to order publication with or without the Member’s name. Member’s Counsel noted that there are two common elements present where publication has been ordered without a member’s name: 1) the misconduct is generally at the low end of the spectrum; and 2) publishing a member’s name is not necessary in order to achieve the penalty objective of deterrence. Member’s Counsel submitted that these two elements exist in this case.

Member’s Counsel submitted that the misconduct this case is at the low end of the spectrum. The Member made contact with Student 1’s backpack and not her body, and the Member was not assigned to teach Student 1. Member’s Counsel further submitted that the reason that the Member could not provide support to Student 1 after she reported being called “[XXX]” by other students was that the Member was sent home the day after this incident.

Member’s Counsel further submitted that the objectives of deterrence, transparency and accountability can all be achieved without publishing the Member’s name. The jointly proposed penalty (excluding the publication of the Member’s name) already responds to the above objectives given that the Member will receive a reprimand, he has to take a course, and a summary of the finding and order of the Committee will be published in Professionally Speaking/Pour parler profession. In addition, transparency is achieved because proceedings are open to the public and the Committee’s decisions are published on the College’s website. According to Member’s Counsel, the public interest will be adequately protected without publishing the Member’s name in the College’s official publication.

Member’s Counsel further submitted that publishing the Member’s name would have an unduly negative impact on the Member and his family. The Member has been teaching for the Board for 16 years and he continues to teach for the same Board. His spouse, who shares his last name, also teaches for the Board, and his children attend school within the Board. Member’s Counsel submitted that the family wishes to avoid public shaming in their community and among their colleagues.

Member’s Counsel urged the Committee not to rely on the cases provided by College Counsel, which were distinguishable on the basis of their facts and involved misconduct of a more serious nature than the case under consideration. In Jarzylo, Berlin and Reeds Alexander, Member’s Counsel noted that the parties had agreed to publish the members’ names, and that these cases were therefore of no assistance to the Committee.

Member’s Counsel provided two cases in support of her position to not publish the Member’s name: Ontario College of Teachers v. Aldoroty, 2015 LNONCTD 15 (“Aldoroty”) and Ontario College of Teachers v. Milsap, 2013 LNONCTD 52 (“Milsap”). Member’s Counsel submitted that these cases involved similar incidents in which students were physically redirected and that the members’ names were not published in either case.

Reply Submissions of College Counsel

In reply, College Counsel indicated that, in Aldoroty, there was no evidence about the impact that publishing the member’s name would have on the member’s family, and the Committee in that case gave no weight to this argument.

College Counsel submitted that Milsap is distinguishable because the member had taught for 31 years and had no prior discipline history, whereas the Member in this case has had three prior incidents of inappropriate physical conduct during his considerably shorter career.

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 only 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. The reprimand will allow the College 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(s) of instruction regarding appropriate disciplinary strategies and sensitivity training will assist the Member in his rehabilitation. The coursework will remind the Member of his obligations as a teacher and will help him to refrain from engaging in any inappropriate physical interactions with students in the future.

With respect to the issue of publication, the Committee received submissions from Member’s Counsel that publication with the Member’s name would negatively impact the Member’s family. The Committee is not persuaded by this submission. There was insufficient evidence advanced to prove that publishing the Member’s name would negatively impact his spouse or his children. The Committee is not convinced that the hypothetical impact that publishing the Member’s name might have on his family is a compelling reason to not order publication of the Member’s name.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publishing the Member’s name will demonstrate to the public that the College takes the issue of inappropriate physical contact seriously and that misconduct of this nature will not be tolerated. Even though the nature of the Member’s misconduct was at the low end of the spectrum, the Committee took into account the Member’s past discipline record for repeated, similar incidents. Publication with name will act as a specific deterrent to the Member as it holds him 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 when matters of this nature are brought to its attention.

The Committee is satisfied that the resolution in this matter is appropriate under the circumstances and serves and protects the public interest.

Date: March 3, 2016 ______________________________

Wes Vickers, OCT

Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT

Member, Discipline Panel

Ann Ciaschini, OCT

Member, Discipline Panel