DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Germundson 2017 ONOCT 31
Date: 2017-04-19
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 Noel Kendrick Germundson, a retired member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov Robert Gagné Ravi Vethamany, OCT
BETWEEN: ) Christine Wadsworth, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano, ) Law Clerk -and- ) NOEL KENDRICK GERMUNDSON ) Noel Kendrick Germundson (CERTIFICATE # 656071) ) Self-represented ) Rebecca Durcan, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) Heard: April 19, 2017
PENALTY DECISION AND REASONS FOR PENALTY
On October 18, 2016, a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) found Noel Kendrick Germundson (the “Member”) guilty of professional misconduct. The Committee’s Decision on Finding and Reasons for Decision is dated October 31, 2016.
The Committee found that the Member, a teacher at a [XXX] school in Tokyo, Japan at the time of the events in question, had engaged in inappropriate and personal communications with young students via Facebook and email. In particular, the Member’s misconduct included:
asking students personal questions about themselves and their families;
sharing personal information about himself (including the fact that he was single, bored, and had few friends in Japan at the time);
seeking affirmation from his female students about his teaching abilities;
asking whether any of his students had a “crush” on him; and
encouraging students to delete inappropriate messages from him and not to talk about the messages at school.
After his employment was terminated in April 2015 because of his repeated misconduct, the Member continued to engage in inappropriate personal communications with students.
As a result of this evidence, the Committee found that the Member contravened subsections 1(5), 1(7.2), 1(18) and 1(19) of Ontario Regulation 437/97.
The Committee reconvened on April 19, 2017 to hear submissions with respect to penalty. The Member was not in attendance for his penalty hearing and he did not have legal representation.
Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 17) sworn April 18, 2017, to demonstrate that the Member had been informed of the time and date of this phase of the hearing, as well as the penalty being sought. In this affidavit, Ms. Spano, a law clerk with McCarthy Tétrault LLP, outlines the College’s communications or communication attempts with the Member and provides proof of service of all required documents. The affidavit states that on November 20, 2016 someone purporting to be a relative of the Member wrote to a Hearings Assistant at the College stating that the Member had passed away on October 19, 2016 and that his email account would be closed as of November 20, 2016. The affidavit further states, however, that after November 20, 2016, the College sent emails to the Member’s email account that did not come back as “undeliverable”. In addition, in March 2017, there was activity on the Member’s Facebook profile page, including updates to the Member’s display photograph. Despite requests from the College for a copy of the Member’s death certificate or other official documentation confirming the Member’s death, the College did not receive any such documentation (see Exhibit 17). The Committee accepts the contents of Ms. Spano’s affidavit. Without having received any such documentation confirming the Member’s death, the Committee will not speculate as to whether the Member has in fact passed away or not.
Based on Ms. Spano’s affidavit, the Committee is satisfied that the Member has been properly served with all required documents at his last known address and was made aware of the time and date of this phase of the hearing and the penalty being sought. The Committee delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.
SUBMISSIONS OF COLLEGE COUNSEL ON PENALTY
College Counsel presented the Committee with a Draft Order on Penalty (Exhibit 18), which she submitted was appropriate given the circumstances of the Member’s case. The draft order addresses the penalty objectives, including specific deterrence, general deterrence, rehabilitation, denunciation of the Member’s misconduct, and the protection of the public interest.
The College submitted that the Committee ought to order a penalty that includes the following elements:
a reprimand;
a suspension of one month in duration; and
terms, conditions or limitations which generally include the condition that the Member successfully complete a course regarding appropriate boundaries and boundary violation issues, prior to commencing a teaching position or any position for which a Certificate of Qualification and Registration is required, and no later than 90 days before commencing a teaching position.
College Counsel presented the Committee three cases in support of its proposed penalty: Ontario College of Teachers v. Ferris, 2013 ONOCT 19 (“Ferris”); Ontario College of Teachers v. Kelley, 2015 ONOCT 43 (“Kelley”); and Ontario College of Teachers v. Kras, 2016 ONOCT 30 (“Kras”). According to College Counsel, these cases would help to guide the Committee’s determination of the appropriate penalty, as they provide a range of reasonable penalties for similar misconduct involving boundary violation issues.
PENALTY DECISION
The Committee makes the following order as to penalty:
prior to commencing a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member is directed to appear before the Committee to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
the Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one month commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register; and
the Registrar is directed 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 a Teaching Position, and no later than 90 days before commencing 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 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.
REASONS FOR PENALTY DECISION
The Committee carefully considered the submissions of College Counsel with respect to penalty and reviewed the relevant jurisprudence and the draft order provided. The Committee believes that the penalty outlined above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member. The penalty is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ferris, Kelley and Kras.
The Committee finds that the Member’s repeated inappropriate and personal communications with students developed into a concerning pattern of behaviour, which warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries with several young students (who were primarily in Grade [XXX]) through his inappropriate use of electronic communication and social media. Members of the profession hold positions of trust and authority, and it is inappropriate for them to engage in personal communications about their private lives or other subjects with students that would not be appropriately discussed in a school or school-related setting. 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.
Given the seriousness of the Member’s conduct, the Committee finds that a one-month suspension is reasonable and appropriate. The Member’s inappropriate and personal communications occurred repeatedly, they involved young students, and they continued even after the Member’s employment was terminated for engaging in similar behaviour. The Member knew that his communications were inappropriate, as he asked students to delete their correspondence and he pressured them not to talk about it at school. The Member put his students in an uncomfortable position and he repeatedly failed to maintain appropriate professional boundaries. These aggravating factors outweigh the mitigating factor that the Member did not have a prior discipline record. The suspension will serve as a specific deterrent to the Member and the recording of the suspension on the public register will serve as a general deterrent to other members of the teaching profession.
The Committee finds that the course of instruction regarding appropriate boundaries and boundary violation issues will assist in the rehabilitation of the Member, should he ever return to a Teaching Position. 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.
Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: April 19, 2017
______________________________ Marie-Claude Yaacov
Chair, Discipline Panel
Robert Gagné
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel