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 Zubair Ahmed Shaikh, a retired member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov, Chair Sara Nouini, OCT Ravi Vethamany, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Eli Mogil, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Shannon Baker, Law Clerk
-and-
ZUBAIR AHMED SHAIKH (CERTIFICATE # 429630) Heather Alden, Ontario Secondary School Teachers’ Federation, and Margaret Kitching, student-at-law for Zubair Ahmed Shaikh
Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: May 1, 2017
PENALTY DECISION AND REASONS FOR PENALTY
On December 20, 2016, a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) rendered a decision finding Zubair Ahmed Shaikh (the “Member”) guilty of professional misconduct.
The Committee found that the Member, a school [XXX]at the time of the events in question, made a series of inappropriate comments with a sexual undertone to a female student while they were alone in his office. In particular, on November 29, 2011, the Member told the student that:
(a) she was beautiful; (b) if she were walking down the street, he would rate her as a “10”; (c) if he pointed her out to friends, they would rate her as a “10”; and (d) when she was doing push-ups, he had to try hard not to look at her butt (referred to collectively as the “Incident”).
The Committee did not accept the Member’s claim that he was simply complimenting the student or trying to boost her self-esteem (see Decision on Finding and Reasons for Decision at page 67). Rather, the Committee found that the Member’s comments were disrespectful and objectifying, and they made the student feel so uncomfortable that she left the school after her [XXX]of Grade [XXX] and was [XXX]for the remainder of the academic year (see Decision on Finding and Reasons for Decision at page 67).
The Committee further noted that while all members of the profession are expected to provide a safe learning environment for students, this expectation is heightened for [XXX]who are trusted to address sensitive, personal issues with students in a respectful and professional manner (see Decision on Finding and Reasons for Decision at page 67). Ultimately, the Member abused his position of trust and authority, and in so doing, he exercised poor judgment and behaved unprofessionally (see Decision on Finding and Reasons for Decision at page 69).
Based on his conduct, the Committee found that the Member contravened subsections 1(7), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.
The College had not advanced sufficient evidence to prove the standards of the profession, and the Committee therefore did not find that the Member contravened subsection 1(5) of Ontario Regulation 437/97.
The Committee reconvened on May 1, 2017 to hear submissions with respect to penalty. The Member was in attendance for the penalty phase of his hearing and he had legal representation.
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 38), the parties jointly submitted that the appropriate penalty to be imposed 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 six months 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;
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 after 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 maintaining professional boundaries with students, subject to the following conditions:
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Decision on Finding and Reasons for Decision of the Discipline Committee as well as a copy of the Penalty Decision and Reasons for Penalty;
(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 after 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.
PENALTY DECISION
Having considered the submissions of the parties and the case law presented, the Committee accepts the Joint Submission on Penalty and makes an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties and finds that it is proportionate to the misconduct committed by the Member. In its totality, the order meets the penalty objectives, which include specific and general deterrence, rehabilitation, transparency, accountability and public protection.
The penalty is also within a reasonable range, based on the case law presented by the parties. College Counsel presented the following analogous cases, which establish an upper range of appropriate penalties for similar types of misconduct involving inappropriate comments and professional boundary issues: Ontario College of Teachers v. Keyte, 2013 ONOCT 56 and Ontario College of Teachers v. Lowrie, 2015 ONOCT 53.
Member’s Counsel presented the following cases, which establish a lower range of appropriate penalties for similar types of misconduct: Ontario College of Teachers v. Ward, 2013 ONOCT 921 and 2013 ONOCT 932; and Ontario College of Teachers v. Woltman, 2015 ONOCT 883 and 2015 ONOCT 894. Member’s Counsel also presented Ontario College of Teachers v. Venditti, 2016 ONOCT 53 in support of the position that the Committee ought to consider as mitigating factors that the Member had engaged in a single instance of unprofessional behaviour and that he has no prior or subsequent discipline history.5
In considering the aggravating and mitigating factors in this case, the Committee finds that a substantial penalty is warranted. The jointly proposed penalty, which includes a six-month suspension, is therefore appropriate. While the Committee recognizes that the Member’s conduct did not form part of a long-term pattern of behaviour and that he does not have a prior or subsequent discipline history at the College, the Committee does not consider the Member’s misconduct to be a momentary lapse in judgment. He made a series of inappropriate comments with a sexual undertone to a student during an approximately [XXX]meeting (see Decision on Finding and Reasons for Decision at page 50). His misconduct was serious, he abused his position of trust and authority as a school[XXX], and he provided inconsistent evidence to the Committee during this hearing, which the Committee finds to have been misleading. His conduct also had a profound negative impact on the student’s high school career (see Decision on Finding and Reasons for Decision at page 68-69).
The Committee finds that the various elements of the jointly proposed penalty are appropriate for the following reasons.
Reprimand
The Committee finds that the Member’s series of inappropriate comments with a sexual undertone warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries and he abused his position of trust and authority as a [XXX]and a member of the teaching profession by making the comments that he did to the student. Rather than ensuring that school was a safe space for the student, he made her feel so uncomfortable that she ultimately [XXX]the school after her [XXX] of Grade [XXX] and was [XXX]for the remainder of the academic year. It is wholly unacceptable for members of the teaching profession to make insensitive, demeaning and unprofessional comments to students.
The reprimand allows the Committee to directly address its concerns with the Member and serves 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.
Suspension
Given the serious nature of the Member’s misconduct, the Committee finds that a six-month suspension is appropriate. The case law provided by the parties demonstrates that the duration of suspensions for similar types of misconduct of varying severity ranges from 15 days (at the lower end of the spectrum) to two years (at the upper end of the spectrum). The Committee accepts that the six-month suspension jointly proposed by the parties falls squarely within this range and is reasonable given the circumstances of the Member’s case. The suspension will serve as a specific deterrent to the Member and the recording of the suspension on the Register will serve as a general deterrent to other members of the teaching profession, by informing them that abusing one’s position of trust and authority as a school [XXX]has serious consequences.
Rehabilitative coursework
The Committee accepts the parties’ jointly proposed terms, conditions or limitations set out at paragraph 3 of the Joint Submission on Penalty, and it has made its order accordingly. The Committee further agrees with the parties that the course of instruction regarding maintaining professional boundaries with students will assist in the rehabilitation of the Member (should he return to the teaching profession). Nevertheless, the Committee believes that this is a case in which the proposed course could have been more carefully tailored to the particular circumstances of the Member’s misconduct. Therefore, the Committee will reiterate its concerns with the Member’s conduct in order to provide additional guidance to the course practitioner and the Registrar, who will be responsible for ensuring that the course is properly tailored to the Member’s misconduct.
Given that the Member was a school[XXX], the Committee expects that the course of instruction regarding maintaining professional boundaries with students will also address the issue of ethics and confidentiality between a [XXX]and a student. To this end, the Committee encourages the course practitioner approved by the Registrar to make use of the resources described in Choices Into Action: Guidance and Career Education Program Policy for Ontario Elementary and Secondary Schools, 1999 (see Exhibit 27 at pages 22-23). In particular, “Ethical and legal handbooks offering advice and assistance in [the area of ethics and confidentiality] are available from professional organizations such as the[XXX]” (Exhibit 27 at page 23).
The Member violated a number of responsibilities that he had as a school [XXX](which go beyond the responsibilities of other teachers). School[XXX], unlike many other teachers, are privy to sensitive information. The Member must be reminded of the great responsibility that comes with this specialized role. The Member had no reason, in this case, to engage in a personal discussion with the student. He was not her [XXX](see Decision on Finding and Reasons for Decision at page 34). He was not asked by the principal (Ms. Grdovic), the [XXX]of the [XXX]department [XXX], or the student to provide [XXX]to the student on the day of the Incident. He also took advantage of personal information that he had learned inappropriately about the student “through the grapevine” (see Decision on Finding and Reasons for Decision at page 43) and he abused his position of trust and authority by making a series of inappropriate comments with a sexual undertone to the vulnerable student.
The Committee believes that an appropriately tailored course will remind the Member of his obligations as a teacher and as a [XXX]and will help him to make better decisions in any future interactions with students, should he return to the teaching profession in a [XXX]or any other position.
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 jointly proposed penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: May 15, 2017
Marie-Claude Yaacov Chair, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel
Ravi Vethamany, OCT Member, Discipline Panel
Footnotes
- Decision and reasons on finding.
- Decision and reasons on penalty.
- Decision and reasons on finding.
- Decision and reasons on penalty.
- The parties also provided the Committee with Ontario College of Teachers v. Palmateer, 2010 ONOCT 27 in their Brief of Authorities, but neither party made any submissions in relation to this case.