DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
John Robert D. Gerwin, OCT, a member of the Ontario College of Teachers.
PANEL: Vicki Shannon, OCT, Chair
Jean-Luc Bernard, OCT
Sara Nouini, OCT
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
-and- )
JOHN ROBERT D. GERWIN ) Simon Blackstone and Jenna Meguid,
) Student-at-Law, Ursel Phillips Fellows
(CERTIFICATE # 264903) ) Hopkinson LLP,
) for John Robert D. Gerwin
) Robin McKechney
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: January 26, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 26, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated July 31, 2014 was served on John Robert D. Gerwin (the “Member”), requesting his presence on August 11, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 26, 2017.
The Member was in attendance throughout the hearing of this matter and had legal representation.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that John Robert D. Gerwin is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act (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 sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student 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:
John Robert D. Gerwin 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 respecting the Member.
At all material times, the Member was employed by the Upper Grand District School Board (the “Board”) as a teacher at [XXX] (the “School”) in [XXX], Ontario. When the Member began working at the School in September 2012, he was specifically directed by the School principal not to discuss personal problems with students and not to be alone with any student.
At all material times, Student 1 was a female student at the School.
During the 2012-2013 academic year, the Member would stop to talk to Student 1 at her locker. These conversations ranged from one minute to, on one occasion, 20 minutes long. At times, Student 1 found the conversation uncomfortably long and made excuses to terminate the conversations with the Member.
The Member would step into Student 1’s personal space frequently by nudging at her arm and/or touching her shoulder with his hand. The Member asserts that any physical contact of this kind was incidental and/or accidental although the Student 1 did not perceive it as such.
Student 1 felt uncomfortable in that she felt that the Member was “always checking her out”.
Student 1 had the Member as her [XXX] teacher during the previous academic year. On one occasion, the Member and Student 1 were talking about music and a band she liked. The Member then told Student 1 about a child of his who had passed away and that a song reminded him of that.
During the 2012-2013 academic year, the Member mentioned to his class that it would have been his daughter’s eighth birthday if she hadn’t passed away. He also talked about home renovations in class.
On or about January 25, 2013, the Member saw Student 1 in the hallway of the School. The Member commented to Student 1 that she looked ill. Student 1 said that she was worried about the [XXX] exam.
The Member said to Student 1, words to the effect that, “You’re going to do fine, just like you look, fine.” This remark by the Member made Student 1 feel very uncomfortable.
Student 1 texted her boyfriend to tell him what the Member had said to her and her boyfriend then went to the classroom to confront the Member.
Subsequently, the Member phoned Student 1’s home on two occasions. On the first occasion, Student 1’s mother answered and told the Member that she was not home. On the second occasion, Student 1’s mother told the Member that he should not speak to Student 1 directly about the incident, but could speak with her.
Notwithstanding this conversation with Student 1’s mother, the Member attempted to speak to Student 1 after being advised not to.
The Member’s employment was terminated by the Board on or about June 10, 2013. Attached and marked as Exhibit “B” is a copy of a letter from the Employee and Labour Relations Manager of the Board to the Member dated June 10, 2013.
The Member has been reinstated and is presently employed by the Board to teach adult students at Dufferin Centre for Continuing Education. Before being reinstated, he was without work and pay from the Board for three years.
On May 30, 2014, the Member was found guilty of professional misconduct as a result of his interactions with a [XXX]-year-old female student in 2010. Attached and marked as Exhibit “C” is a copy of the Decision, Reasons for Decision and Orders of the Discipline Committee.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).
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).
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 a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between his counsel 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.
- 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
College Counsel requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3), be withdrawn. The Committee granted the request.
Having considered the Agreed Statement of Facts and Guilty Plea, and the submissions of College Counsel and Counsel for the Member, 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).
REASON FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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, 5, 6, 7, 8, 10, 12 and 13 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, 7 and 10 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, 5, 6 and 10 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, 5, 6, 7, 8, 10, 12 and 13 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, 10, 12 and 13 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, 10, 12 and 13 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 Committee in this matter would be that the Committee:
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”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three months and the fact of the suspension is to be recorded on the Register.
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 returning to a teaching position or any other position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding appropriate professional boundaries and classroom management.
(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider 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 courses.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its term as set out above. The Committee orders, with the agreement of the parties, that the Member’s suspension will commence on February 6, 2017. The six-day delay in the start of the suspension will ensure the Member meets his professional obligation of completing exam evaluations for his current students.
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 its 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 found that the Member failed to maintain the standards of the profession in committing boundary violations with a female student through unwanted actions and conversations. Based on the evidence presented, the Committee concluded that this professional misconduct was very similar in nature to the Member’s first incident of professional misconduct. This second occurrence of professional misconduct took place despite the very specific direction the Member was given from both the previous panel of the Discipline Committee and his employer. The Member had been directed to refrain from developing personal relationships with students through his actions and personal conversations. The Committee questions whether the Member either dismissed or ignored the direction he was given as to appropriate boundaries in relationships between teachers and students.
The Member’s disregard for his employer’s instructions “not to discuss personal problems with students and not to be alone with any student” led to his failure to comply with this requirement. He engaged in multiple conversations with a female student which made her uncomfortable. He invaded her personal space by touching her arm and shoulder. He told the student intimate details of his personal life. As well, he made comments about her physical appearance that made her uncomfortable, and this was brought to his attention by the student and her boyfriend. The Member’s determination to address the issue with the student led him to call her home on two occasions, and to ignore her mother’s direction that he not speak with her daughter. The Member failed to take into account the impact he was having on the student. The Member also spoke inappropriately to his class about his personal life.
The Committee finds that the Member’s boundary violation issues 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. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
The Member’s continued, inappropriate boundary violations necessitate a serious penalty of a second suspension, which will be of a three-month duration. This suspension is of a shorter duration than the six-month suspension imposed during the Member’s previous discipline hearing, due to the fact that the Committee recognizes that the behaviour presently at issue is less egregious than the behaviour considered in the Member’s previous proceeding. However, a three-month suspension is in itself a serious penalty, and reflects the Member’s failure to rehabilitate his conduct and respect professional boundaries.
As well, the Committee finds that the course of instruction regarding appropriate boundaries and classroom management 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. It will also remind the Member to be vigilant in maintaining professional boundaries with his students.
The Committee recognizes that it no longer has discretion with respect to publication, as publication with 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 serves and protects the public interest.
Date: February 14, 2017
______________________________ Vicki Shannon, OCT
Chair, Discipline Panel
Jean-Luc Bernard, OCT
Member, Discipline Panel
Sara Nouini, OCT
Member, Discipline Panel