Ontario College of Teachers v. Bell, 2016 ONOCT 5

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bell, 2016 ONOCT 5

Date: 2016-07-28

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

Duncan Andrew Bell, 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 Daniela De Bartolo,

– and – ) Law Clerk

DUNCAN ANDREW BELL ) Susan Luft,

(CERTIFICATE #475206) ) Ontario Secondary School

) Teachers’ Federation,

) for Duncan Andrew Bell

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: July 6, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 6, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 23, 2014 (Exhibit 1) was served on Duncan Andrew Bell (the “Member”), requesting his presence on August 22, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for July 6, 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 Duncan Andrew Bell 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(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 the following:

1. Duncan Andrew Bell is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Member’s Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2012-2013 academic year, the Member taught [XXX], and [XXX] to students in Grades [XXX], [XXX] and [XXX] at the School.

4. During one of the Member’s Grade [XXX] classes in January 2013, a group of female students were talking amongst themselves by the Member’s desk. Student 1, a Grade [XXX] female student, discussed a hypothetical situation about going out on a date with someone, then returning to the date’s residence for a coffee. Another student asked Student 1, “do you mean sex?”, and Student 1 said, “no, just coffee.”

5. The Member overheard the conversation and said words to the effect of, “if I were a [XXX] year old boy, I would expect sex after the date.” Student 1 felt uncomfortable when the Member said those words and believed the Member was looking at her as he spoke. The other female students heard the remark and felt uncomfortable around the Member afterwards.

6. If the Member were to testify, he would say that he intended his comment to be humorous. However, he acknowledges that it was an inappropriate sexual comment and understands how Student 1 may have been offended by it.

7. Some of the female students, including Student 1, also felt uncomfortable in the Member’s class because they felt he was staring at them inappropriately. The Member agreed to be conscientious about his eye contact with students in the future.

8. Following its investigation, the Board suspended the Member for 15 days without pay and transferred him to a different school. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated April 10, 2013.

GUILTY PLEA

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

10. 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(7.2), 1(15), 1(18) [unprofessional], and 1(19).

11. 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 him and counsel for the College 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.

12. 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), (d) and a portion of paragraph (f) of the Notice of Hearing, namely that the Member contravened subsection 1(7), 1(7.3) 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(7.2), 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 8 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(7.2), 1(15), 1(18) [unprofessional] and 1(19).

Paragraphs 5, 6 and 7 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 5, 6 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 5, 6 and 7 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 5, 6 and 7 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 5, 6 and 7 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:

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 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 and student sensitivities, 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.

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.

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, subject to the following amendment agreed to by the parties. Paragraph 3 of the Joint Submission on Penalty has been amended to read as follows:

direct that there 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. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

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 penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Pott, 2014 LNONCTD 110 and Ontario College of Teachers v. Eyiah, 2015 LNONCTD 21.

The Committee finds that the Member’s inappropriate and offensive comment warrants a reprimand by his peers. The Member made students of his feel uncomfortable in his class, which is unacceptable. Teachers hold a position of trust and authority and are expected to set an example of good moral behaviour to students and to respect the appropriate professional boundaries of the teacher-student relationship. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. It will remind the Member that making comments of a sexual nature is never appropriate when communicating with students. 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 appropriate boundaries and student sensitivities 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. 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 28, 2016

Tom Potter

Chair, Discipline Panel

______________________________ Wes Vickers, OCT

Member, Discipline Panel

Marie-Claude Yaacov

Member, Discipline Panel