Ontario College of Teachers v Santos, 2016 ONOCT 59

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Santos, 2016 ONOCT 59

Date: 2016-11-01

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

Paul Gomes Santos, OCT, a member of the Ontario College of Teachers.

PANEL: Robert Gagné, Chair

Ann Ciaschini, OCT

Vicki Shannon, OCT

BETWEEN: )

) Zirka Jakibchuk,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

– and – )

PAUL GOMES SANTOS ) Kirsty Niglas-Collins,

(CERTIFICATE #426269) ) KNC Law, and

) Margaret Kitching, Student-at-Law,

) Ontario Secondary School Teachers’ ) Federation

) for Paul Gomes Santos

) Robin McKechney

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: October 14, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 14, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 19, 2016 (Exhibit 1) was served on Paul Gomes Santos (the “Member”), requesting his presence on February 5, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 14, 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 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 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); and

(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

AGREED STATEMENT OF FACTS

Counsel for the College 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. Paul Gomes Santos is and was at all material times 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.

Background Information

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher. He has taught at the Board since 2000, where he continues to teach. During the 2012-2013 academic year, the Member worked as a teacher at [XXX] (the “School”) in [XXX], Ontario.

3. At the beginning of the 2013-2014 academic year, the Member has worked as a co-teacher at the [XXX] [XXX], an alternative secondary school geared towards [XXX] students striving to attain their secondary school diploma.

The Conduct

4. During the 2012-2013 academic year, on more than one occasion, the Member used profane and inappropriate language in the class. The Member acknowledges that, on a couple of occasions, he used inappropriate language as a way to ‘break the ice’ with his class.

5. As a result of the Member’s actions described in paragraph 4 above, the Member received a letter of reprimand from the Board. Attached and marked as Exhibit “B” is the letter from the Board dated May 13, 2013.

6. At the beginning of the 2013-2014 academic year, while working at the [XXX] the Member used profanity in the presence of students and displayed inappropriate conduct, which included but were not limited to:

(a) doing the middle finger gesture on the classroom blackboard;

(b) drawing the attention of a female student to the first three fingers of his raised hand and telling her to “read between the lines”; and

(c) improperly discussing his own personal use of marijuana.

7. The Member acknowledges that, on one occasion, he used profanity and did so in the presence of students. He immediately realized his mistake and apologized to the class. The Member also acknowledges discussing marijuana usage with his older classes when addressing the topic of legalization. During these discussions, he shared his own personal experiences of the negative effects of marijuana with them.

8. As a result of the Member’s actions described in paragraphs 6 and 7, the Member received a letter of reprimand and was suspended for one day without pay. Attached and marked as Exhibit “C” is a letter from the Board dated June 23, 2014 and a letter from the Ontario Secondary School Teachers’ Federation confirming the reduction of the suspension from three days to one day dated November 13, 2014.

9. On or about October 28, 2014, the Member made an inappropriate remark to his Grade [XXX] [XXX] class saying that he was “microsoft”, meaning that he has a small penis.

10. As a result of the Member’s action described in paragraph 9, the Member received a letter of reprimand and was suspended for four days without pay. Attached and marked as Exhibit “D” is the letter from the Board dated December 5, 2014 and a letter from the Ontario Secondary School Teachers’ Federation confirming the reduction of the Member’s suspension from six days to four days dated January 29, 2015. The Board also required the Member to meet with the principal of his current School, or his designate, to review the Ethical Standards for the Teaching Profession. The Member was required to provide evidence that he had satisfactorily addressed his demonstrated professional development needs with respect to parameters that define appropriate interactions between teachers and students. The Member met the Board’s expectations by completing a boundaries course on March 2, 2015. Attached and marked as Exhibit “E” is the letter from the course practitioner dated October 13, 2015.

11. Through the Board’s staffing process, the Member transferred to [XXX] for the beginning of the 2015-2016 school year. The Member has had no further disciplinary incidents reported to the College. In October 2015, the Member became an [XXX] for [XXX]. In December 2015, the Member obtained his specialist qualification in [XXX]. Attached and marked as Exhibit “F” is a letter from Suzan Joueid, vice-principal at [XXX].

GUILTY PLEA

12. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “Admitted Facts”).

13. 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(7.2), 1(15), 1(18) and 1(19).

14. 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 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;

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

15. 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

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, 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(7.2), 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 11 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), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 4, 6, 7 and 9 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 4, 6, 7 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 4, 6, 7 and 9 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 4, 6, 7 and 9 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) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 4, 6, 7 and 9 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 4, 6, 7 and 9 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, and the fact of such terms, conditions or limitations is 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 Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar, regarding student sensitivities;

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

(i) he or she has reviewed 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; and

(ii) the Member has successfully completed 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 ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved decisively in an open and transparent manner.

College Counsel referred the Committee to three cases involving inappropriate comments made by a member: Ontario College of Teachers v. Gal, 2014 LNONCTD 46; Ontario College of Teachers v. Bryant, 2014 LNONCTD 80; and Ontario College of Teachers v. Bordonali, 2010 LNONCTD 14. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all instances.

Submissions of Member’s Counsel

Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through the reprimand of the Member, the recording of the fact of the reprimand on the Register, and through a course regarding student sensitivities. Member’s Counsel argued that there is no value added by publishing the Member’s name in the College’s official publication, and noted that the decision including the Member’s name would already be made publicly available on the College website and elsewhere. Moreover, publication with name would prejudice the Member as he attempts to re-establish his teaching career. It was argued that publication with name would impact the Member’s rehabilitation. Member’s Counsel submitted that the Member is devastated that colleagues and students will read about his case while he is working to remedy his behaviour.

Member’s Counsel referred the Committee to three cases: Ontario College of Teachers v. Shuber, 2015 LNONCTD 6 (“Shuber”); Ontario College of Teachers v. Todd, 2011 LNONCTD 35 (“Todd”); and Ontario College of Teachers v. Mukts, 2013 LNONCTD 98 (“Mukts”). According to Member’s Counsel, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee.

Member’s Counsel stated that the Member accepts that what he did was wrong, but he is working hard to re-establish his reputation and career. Member’s Counsel argued against publication of the Member’s name for that reason. It was also submitted that publication with name has an impact on what members do and how they return to the classroom after pleading guilty to misconduct.

Reply Submissions of College Counsel

In reply, College Counsel submitted that the cases presented by Member’s Counsel were heard from 2011 to 2014 when the “landscape” was different, in that publication with name was not as frequently ordered as it is today. Further, College Counsel noted that each of the cases presented by Member’s Counsel were distinguishable from the Member’s case based on a number of key distinguishing factors.

In Shuber, College Counsel noted that Mr. Shuber pleaded no contest to the allegations and received one letter of discipline. In the Member’s case, by way of contrast, the Member pleaded guilty to the allegations against him and received three letters of reprimand. His conduct was more serious. In addition, College Counsel submitted that there are other cases with similar facts to Shuber in which publication with name was ordered, and College Counsel suggested that Shuber was an anomaly.

In Todd, College Counsel submitted that the nature of the misconduct (classroom management and the member’s approach to discipline) was different from the Member’s case, which involved student sensitivity issues. In addition, College Counsel stated that in Todd, the member’s misconduct took place very early in Mr. Todd’s teaching career and that he subsequently achieved two successful Teacher Performance Appraisals (unlike in the present case where no Teacher Performance Appraisals were presented to demonstrate the Member’s improvement). Moreover, College Counsel noted that in Todd, the College did not take a position on the issue of publication and deferred to the discretion of the Committee.

In Mukts, College Counsel noted that Mr. Mukts pleaded no contest to the allegations and did not receive any suspensions from his Board, unlike the Member in this instance who pleaded guilty to the allegations against him and received two suspensions from his Board. College Counsel also noted the distinction in Mukts that Mr. Mukts had retired from the profession and the Committee therefore found that publication with name would add little value as a deterrent. College Counsel submitted that there is value in publishing the Member’s name in this instance for the purposes of specific and general deterrence because the Member is not retired from the profession.

College Counsel disagreed with the submission of Member’s Counsel that the purposes of penalty, including specific deterrence, general deterrence, and transparency would be adequately addressed by the other components of the penalty order, and that there was no need to publish the Member’s name in the College’s official publication since the decision (including his name) would be publicly available on the College website and elsewhere. College Counsel submitted that publication without name would send the wrong message to the profession and was not in line with the objectives of transparency and accountability.

College Counsel also disagreed with the submission of Member’s Counsel that because the Member had no prior or subsequent discipline history at the College, publication with name should not be ordered. College Counsel submitted that the Committee should not place significant weight on these mitigating factors when deciding whether or not to publish the Member’s name in the College’s official publication.

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, which continued despite warnings and discipline from his 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 sensitivity training will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him 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, because the aggravating factors outweigh the mitigating factors in this case. Although the Member is currently doing well as an [XXX] for [XXX], he appears to be committed to rehabilitation, he has expressed regret for his actions, and he has cooperated with the College’s discipline process, the aggravating factors in this case tilt the balance in favour of publication with name. The Member’s misconduct was serious and repeated (even after he received warnings and discipline from his Board), it occurred at two different schools, and it involved profanity, discussion of marijuana usage, and inappropriate remarks about his genitals. Members of the profession are expected to be positive role models for students, and the Member’s repeated conduct was disrespectful and demonstrated a lack of regard for his students and his professional obligations.

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: November 1, 2016

Robert Gagné

Chair, Discipline Panel

______________________________ Ann Ciaschini, OCT

Member, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel