Ontario College of Teachers v. Somerfield, 2016 ONOCT 98

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Somerfield 2016 ONOCT 98

Date: 2016-11-18

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

Gary George Somerfield, a retired member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Irene Dembek, OCT

Stéphane Vallée, OCT

BETWEEN: ) Vladimira Ivanov,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

– and – )

GARY GEORGE SOMERFIELD ) Gary George Somerfield,

(CERTIFICATE #169611) ) Self-represented

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: October 13, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 13, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated March 30, 2016 (Exhibit 1) was served on Gary George Somerfield (the “Member”), requesting his presence on April 18, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 13, 2016.

The Member was not in attendance for the hearing and he did not have 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”):

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

(b) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(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);

(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); and

(e) 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. Gary George Somerfield 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. At all material times, the Member was employed by the Lakehead District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Thunder Bay, Ontario.

3. At all material times, the Student was a Grade [XXX] female student at the School.

4. On or about February 12, 2014, the Member approached the Student in the hallway of the School and invited her into his classroom. The Member told the Student that he needed to talk to her. The Student went to the Member’s classroom and the Member stated, “this is crazy. Come talk to me another time.” The Student left feeling confused and “weirded out”.

5. On or about February 13, 2014, the Member again approached the Student in the hallway. He said to the Student, “make sure you talk to me again but make sure it’s longer than five minutes.” Once again, the Student acknowledged the Member and walked away. Once again, the Student left feeling confused.

6. On or about February 14, 2016 [sic], Member was seen by the Student standing in the hallway outside of her [XXX] class. The Member waved at the Student while class was in session. The gesture made the Student upset and “freaked her out”.

7. On or about February 18, 2014, the Member was standing near the door to her [XXX] class. When class ended, the Student and her friends left through the other door to deliberately avoid the Member and walked quickly down the hallway. However, because she had to go to her locker, which was on the opposite side, she ran into the Member near the cafeteria. The Member told the Student, “make sure you come talk to me period four today. I will drop whatever I’m doing to talk to you.” Again, this exchange with the Member made the Student feel uncomfortable.

8. Later that day, the Student and her friends were eating lunch in the cafeteria and the Member approached the Student to ask her to speak to him – “I have a minute right now”. The Student and her two friends went to the Member’s classroom.

9. The Member told the Student’s friends to wait outside, but the Student told the Member that her friends were going to stay with her. So they entered the Member’s classroom. The Student’s friends waited and the Student followed the Member through the classroom into a room that joins the neighbouring classroom. The Member then closed the door to the other classroom.

10. The Member stood in the room and the Student stood in the doorway. The Member then pulled out his cell phone and showed the Student a photograph of her which the Member downloaded from the Student’s Instagram account. The Member asked the Student, “does this look familiar?”

11. The Student asked the Member where he got the photograph and the Member stuck out his hand and said to the Student, “I’m Gary.” The Student did not shake the Member’s hand and felt confused. The Member asked the Student if what he did made sense and the Student said it did not. The Member then told the Student, “well we need to talk then.” The Student repeatedly asked why and the Member said that he could not tell the Student at that time.

12. The Student continued to ask the Member to tell her why he had the photograph of her and the Member walked towards the adjoining room once more. The Student did not go inside because the Member’s hand was on the door handle and she thought that he was going to close the door. The Student told the Member that he could tell her in front of her friends. The Member then responded, “well no I can’t actually. Come and find me later and I’ll tell you.” The Student left the Member’s classroom with her friends. The Student cried and felt very uncomfortable with the exchange.

13. The Member retired from the Board effective March 31, 2014. Attached hereto and marked as Exhibit “B” are copies of the Member’s resignation letters dated January 21, 2014 and March 4, 2014 respectively. Attached hereto and marked as Exhibit “C” is a copy of the letter from the Director of Education of the Board to the Member acknowledging and approving the resignation dated March 5, 2014.

GUILTY PLEA

14. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 13 above (the “Admitted Facts”).

15. 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) and 1(19).

16. 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 without the advice of legal counsel.

17. 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 College Counsel, 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) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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) and 1(19).

Paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 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, 5, 6, 7, 8, 9, 10, 11 and 12 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 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, 5, 6, 7, 8, 9, 10, 11 and 12 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, 5, 6, 7, 8, 9, 10, 11 and 12 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), the parties 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 prior to commencing or returning to a teaching position or any position for which a Certificate of Qualification and Registration (collectively referred to as a “Teaching Position”) is required, 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) prior to commencing or returning to a Teaching Position, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues subject to the following conditions:

(i) the Member will provide to the 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) following 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 which:

(i) confirms that the Member has successfully completed the course and reports 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 to 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 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. Pott, 2014 LNONCTD 110; Ontario College of Teachers v. Graham, 2015 LNONCTD 64; and Ontario College of Teachers v. Gordon, 2015 LNONCTD 50. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all the instances cited.

Submissions of the Member

The Member was not in attendance. However, the Member submitted a letter to the Discipline Committee dated August 25, 2016 (see Exhibit 5), in which he requested that his name not be published in the official publication of the College, Professionally Speaking/Pour parler profession. The Member asked that the Committee take into consideration the following mitigating factors: he had a 28 year teaching career with no prior discipline history; he has accepted responsibility for his actions and has come to an agreement with the College; he is retired and has no intention of returning to teaching; and he would like to avoid any further pain or embarrassment to his family.

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 episodes of inappropriate conduct in which he made the Student feel frightened and uncomfortable 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, should the Member ever return to a Teaching Position. 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, should the Member ever return to a Teaching Position, the course of instruction regarding appropriate boundaries and boundary violation issues will assist in the rehabilitation of the Member. The coursework will assist the Member in establishing a positive learning environment that is sensitive to the needs of students and will reinforce his obligation to maintain appropriate professional boundaries with students at all times. This component of the penalty order is designed to be rehabilitative and should help the Member 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. The Committee considered the submissions of the College and the written submissions of the Member on the issue of publication. The Committee recognizes that the Member had a lengthy career with no prior discipline history, that he has accepted responsibility for his actions, that he is retired and does not intend to return to teaching, and that he wishes to spare his family any further embarrassment. The aggravating factors in this case, however, outweigh these mitigating factors.

Publication of the Member’s name is warranted in this case because the profession needs to be reminded about the importance of maintaining professional teacher/student boundaries, including the appropriate use of social media. By denouncing the Member’s conduct and publishing his name, the Committee informs the profession of the consequences of engaging in similar forms of misconduct. The Committee also finds that the Member’s conduct in this matter was serious; his inappropriate behaviour frightened a student and made her feel very anxious and uncomfortable. Teachers are expected to provide a safe learning environment for students, but the Member did the opposite. The Committee accepts the submissions of College Counsel that publication with name is an important tool for deterrence. Members of the profession do not want to be embarrassed by having their names published. In this case, the Committee finds that the penalty objectives including transparency, accountability and deterrence outweigh the Member’s privacy interests.

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 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 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 18, 2016

Tom Potter

Chair, Discipline Panel

______________________________ Irene Dembek, OCT

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel