Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness or is the subject of evidence in this hearing.
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
Timothy Cyril Sullivan, OCT, a member of the Ontario College of Teachers.
PANEL: Ravi Vethamany, OCT, Chair Jane Ishibashi Sara Nouini, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Christine Wadsworth, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela Spano, Law Clerk
– and –
Timothy Cyril Sullivan (CERTIFICATE # 420619) Timothy Cyril Sullivan was present and self-represented
Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: February 21 and 22, 2017 Written submissions on penalty received: March 8 and 17, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 21 and 22, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated October 31, 2015 was served on Timothy Cyril Sullivan (the “Member”) requesting his presence on November 27, 2015 to set a date for hearing, and specifying the charges.
At the commencement of the hearing, pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), the Committee ordered that no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness or is the subject of evidence in a hearing. The Committee therefore ordered that no person identify any of the students referred to in the hearing or refer to any information that could identify them, including the name of the school where the Member was employed.
SUMMARY
The allegations against the Member relate to his conduct on March 9, 2015. On that date, he left his classroom to engage in multiple interactions with health unit staff and students who were present at an immunization clinic at the school, in order to express his strongly-held views about vaccines.
The Committee found that the Member’s disrespectful and disruptive behaviour amounted to professional misconduct. In particular, the Committee found that the Member: abused a student or students psychologically or emotionally; failed to supervise adequately a student or students who are under the professional supervision of the Member; failed to comply with the Education Act, R.S.O. 1990, c. E.2; committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(11), 1(15), 1(18) and 1(19).
The Committee released an oral decision on finding on February 22, 2017, with written reasons to follow. The Committee then heard the College’s oral submissions on penalty. The Member made written submissions on penalty.
After considering the submissions of the parties, the Committee found that the appropriate penalty in this case was that the Member receive a reprimand, a one-month suspension, and complete remedial coursework. The Committee also directs the imposition of a term, condition or limitation on the Member’s certificate of qualification and registration prohibiting him from attending at any health clinic conducted at a school where he is employed for a period of two years.
THE ALLEGATIONS
IT IS ALLEGED that Timothy Cyril Sullivan is guilty of professional misconduct as defined in subsection 30(2) of the Act in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);1
(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he failed to supervise adequately a student or students who are under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);
(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).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Timothy Cyril Sullivan is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Grand Erie District School Board (the “Board”) as a [XXX] teacher at [XXX]School (the “School”) in[XXX], Ontario.
On or about March 9, 2015, the Member:
(a) attended at the School’s cafeteria and questioned a public health nurse about the contents of vaccines being administered to students;
(b) attended at the School’s cafeteria a second time and told students not to get vaccinated and/or suggested that they should not get vaccinated;
(c) told students that they could die as a result of the vaccination and/or that one of the side effects of the vaccine was death;
(d) attended at the School’s office during class time to discuss vaccination of students;
(e) left his class unattended;
(f) attended at the School’s cafeteria a third time and accused a public health nurse of hiding information from him about the content of the vaccines.
- The Member was suspended without pay on April 15, 2015 by the Board.
PROCEDURAL ISSUE
Adjournment request
Submission of the Member
On the afternoon of February 21, 2017, during the cross-examination of Mr. Brian Quistberg, principal of the School, the Member requested an adjournment until the next day to continue his cross-examination. The Member alleged that he did not get certain documents, such as one of the “talking locker” messages (Exhibit 16), and Mr. Quistberg’s notes on his interaction with the Member in the hallway on March 9, 2015 (Exhibit 22). However, the Member later acknowledged he may have received disclosure of the documents from College Counsel. The Member argued that he needed more time to review these documents and to prepare his cross-examination.
Submission of College Counsel
College Counsel objected to the adjournment request. College Counsel argued that if the Member had concerns regarding documents or his ability to prepare, he should have raised them at the outset of the hearing. College Counsel submitted that all the documents entered into evidence at the hearing had been provided to the Member in advance of the hearing, either in the original disclosure brief or with supplemental disclosure which had been provided more than a week in advance of the hearing. College Counsel argued that the Member had the relevant documents and had enough time to prepare his case, and therefore his adjournment request should be denied.
Decision on adjournment request
The Committee carefully considered the submissions of the parties. Pursuant to Rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Committee has the discretion to adjourn a hearing. Furthermore, pursuant to sub-rule 14.01(2) of the Rules and in accordance with section 21 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Committee may consider one or more of the following factors when deciding whether or not to grant an adjournment:
The sufficiency of the reasons advanced for the request to adjourn – The Member did not provide sufficient reasons for allowing an adjournment. He stated that he needed additional time to prepare his cross-examination of Principal Quistberg and was not given certain documents or was not given them in a timely manner. However, the Committee finds that the Member was given all the documents in this case with sufficient time to prepare his defence. While the Rules do not provide a timeline in which one party must provide disclosure to the other party in discipline hearings, the Committee would have granted an adjournment if it had found that the Member did not have sufficient time to prepare. The documents that the Member referenced were short and the Committee gave the Member a recess to review these documents for the purpose of his cross-examination before the adjournment issue was argued. This was done because the Member was self-represented and the Committee wanted to provide procedural fairness to both parties in presenting their cases and cross examining witnesses, and also provide fairness to witnesses whose attendance was required to give evidence. In this case, the Committee found that the Member was given sufficient time to prepare his cross-examination of Principal Quistberg.
The timeliness of the request – The Member’s request was very late, coming during his cross-examination of the College’s second witness.
The resources of the Committee, including scheduling related issues – An adjournment could result in a lengthy delay as more time would be needed to complete the hearing, causing the Committee and College staff added financial costs and difficulty in rescheduling hearing dates.
Any prejudice to the parties – The College would incur the expense of bringing its witness back for another day of hearing.
Whether any adjournments had been granted previously – No adjournments were previously granted.
The consent of the parties – The College did not consent to the adjournment.
Any other relevant factor – The Committee provided explanations and assistance to the Member about the discipline hearing process and procedures because he was self-represented. The Committee also ensured that the Member understood the procedures for examination and cross-examination, and for the presentation of evidence.
The Committee denied the Member’s request for an adjournment because of all of the above reasons and because it is in the public interest to decide discipline cases in a timely manner and without unnecessary delay.
MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
THE EVIDENCE
The College called two witnesses in the hearing: Ms. Angela Swick and Principal Brian Quistberg.
Ms. Angela Swick
Ms. Swick was the lead public health nurse at the immunization clinic at the School on March 9, 2015. She was in charge of the operation of the clinic. Ms. Swick has been a registered nurse since 2007 and works for the Haldimand-Norfolk Health Unit (the “Health Unit”).
Ms. Swick gave evidence about the Ontario laws which require students to be immunized; the Health Unit’s immunization clinics; the Member’s attendance and conduct at a clinic that was held at the School on March 9, 2015; and her communications with Principal Quistberg.
The Committee notes that most of Ms. Swick’s evidence about the Member’s attendance and conduct at the clinic on March 9, 2015 was not disputed by the Member with the main exception being the manner in which the Member spoke to witnesses.
The Committee found Ms. Swick to be a credible witness. Her evidence was clear and detailed and was mostly consistent with her contemporaneous emails about the events on March 9, 2015 (Exhibit 8) and with documentation of her contemporaneous conversation with her manager, Melanie Michaels, in a letter to Principal Quistberg on March 23, 2015 (Exhibit 23).
Principal Brian Quistberg
Brian Quistberg was the principal of the School at all material times. He has been teaching since 1985, and worked at the School as a vice-principal before becoming principal in 2014. Mr. Quistberg is currently the principal at Tollgate Technological Skills Centre.
Principal Quistberg gave evidence about previous similar misconduct by the Member, including the “talking locker” reports of the Member’s conduct in class, and his interaction with Student 1, discussed further below. He also testified about his role responding to the concerns of the public health nurses on March 9, 2015, and his investigation and disciplining of the Member.
The Committee found Principal Quistberg to be a credible witness. His evidence was clear and responsive to questions and was consistent with his contemporaneous investigation and discipline notes, and with Ms. Swick’s testimony. He did not embellish nor attempt to misrepresent his ability to recollect details; for example, he stated that he did not recognize discipline letters given to the Member in 2008 and 2009, but remembered a letter given to the Member in March 2010.
The Member
The Member gave evidence on his own behalf. He testified about the events of March 9, 2015 and he presented evidence about side effects listed in the product monographs for Adacel, Adacel-Polio and the MMR II vaccine (Exhibits 9, 10 and 12).
In terms of the Member’s credibility, the Committee found that the Member’s evidence was internally consistent. However, the Committee found that the Member’s perception of the events was affected by his strong advocacy against vaccines; for example, the Member lacked self-awareness about the impacts of his conduct on other professionals and students because of his fixation with the vaccine issue. The Committee also found that the Member’s evidence was coloured by his attempt to justify or minimize his conduct, which diminished his credibility.
In terms of documentary evidence, the Member entered into evidence provisions from the Health Care Consent Act, 1996, R.S.R. 1996, c. 2, the Health Care Protection and Promotion Act, 1990, R.S.O. 1990, C. H.7, and the Code of Ethics for Registered Nurses (Exhibits 11, 13 and 28). The Committee admitted these documents but finds that these documents were not relevant to the issue in this case, which is whether the Member committed professional misconduct on March 9, 2015 in his role as a teacher. The issue was not the conduct of the nurses or Ontario public health policy.
The Member provided other legal references (Exhibit 29) and information from the website of an American law firm that advertised itself as winning or settling vaccine-related litigation (Exhibit 30). The Committee finds that the legal references were not relevant to the Member’s conduct at the immunization clinic and the Committee gives no weight to the information from the U.S. law firm’s website because it was not useful, it was unclear, and it provided speculative assertions about alleged vaccination litigation in a foreign jurisdiction.
SUBMISSIONS OF THE COLLEGE WITH RESPECT TO FINDING
The College submitted that the Member should be found guilty of professional misconduct. The College argued that the Member psychologically abused students by making a student fearful she might die due to vaccinations, and by aggressively warning students they should not get vaccinations. College Counsel also argued that the Member failed to adequately supervise students by leaving his classroom at least once, as he had an obligation to be present during the whole of his classes. Moreover, according to College Counsel, the Member’s conduct in acting aggressively and disrespectfully towards public health nurses and students was contrary to the Education Act. As well, she argued this conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and was conduct unbecoming a member.
SUBMISSIONS OF THE MEMBER WITH RESPECT TO FINDING
The Member acknowledged that, on March 9, 2015, he left his class for a brief period of time. He also acknowledged that he spoke to students at the immunization clinic and sought information from the nurses. However, the Member denied that he committed professional misconduct.
The Member took the position that his interactions with students at the immunization clinic was justified because the students were receiving immunizations without being given all the facts, and therefore he was allowing for informed consent on the part of students. The Member stated that he had an obligation to look after the wellbeing of his students. According to the Member, the immunization clinic was committing an “assault and battery” on students by administering immunizations without providing students with adequate information, and therefore the Member felt obligated to intervene.
As well, the Member denied that he spoke to the nurses or students in a manner that was threatening or fear-provoking. He stated that the nurses objected to the content of his questions and therefore construed his questions as threatening. He stated that there was nothing improper about the manner in which he was speaking to them.
The Member described his conduct on March 9, 2015 as “one of the most professional things I’ve done.” He argued that he was justified in making students aware of side effects that were being omitted by the public health nurses administering the clinic.
DECISION
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request. It is within the discretion of College Counsel not to proceed with all the grounds of misconduct, and the Committee notes for the purpose of transparency that this request was made by College Counsel and accepted by the Committee.
Having considered the evidence and submissions of both 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, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(11), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
Factual findings
1. Background facts
High School Immunization Program
The Immunization of School Pupils Act, R.S.O. 1990, c. 1.1 (Exhibit 3) states that parents of minor pupils have a duty to ensure that their children complete the prescribed program of immunization in relation to all “designated diseases” (subsection 3(1)). “Designated diseases” is defined as “diphtheria, measles, mumps, poliomyelitis, rubella, tetanus and any other disease prescribed by the Minister of Health and Long-Term Care” (section 1).
The Immunization of School Pupils Act outlines circumstances in which a parent can be exempted from this duty to ensure their child is immunized. These exemptions include medical exemptions, or exemptions for conscientious or religious reasons (subsections 3(2) and 3(3)). If a student is not immunized and has not been exempted, the medical officer of health may order that the pupil be suspended for 20 school days (sections 6 and 7).
The Committee finds that annual public health immunization clinics were held in the high school but that teachers do not participate in the clinics (with the exception of the principal who has a general responsibility for the school). These clinics are operated by Ontario public health nurses under public health protection legislation in order to vaccinate children against tetanus, diphtheria whooping cough, polio, and meningococcal disease using the following booster shots: Tdap (Adacel), Tdap-IVP (Adacel Polio), and, Men-C-ACYW-135 (Menactra).
The Committee heard evidence that, in holding these clinics, the Health Unit took reasonable steps to get informed consent from students receiving immunizations. The Health Unit provided information online about required and recommended vaccines, their safety, and their side effects (Exhibit 6). In the days leading up to a clinic, the Health Unit would set up a hotline so that parents and students could call in and speak to a public health nurse. Information sheets about the vaccines, explaining the purpose of the vaccines, their safety, and potential non-serious and serious side effects, were provided at the immunization clinic (Exhibit 7). At the clinic, students would typically check in with a public health nurse, who would double-check a student’s vaccination record. At that point, students would sign a consent form (Exhibit 7). Once the form was signed, the students would then meet with a public health nurse, who would ask the students screening questions regarding any health conditions or allergies, among other things. These questions would indicate to the nurses whether there was a risk of any complications from the vaccinations due to a pre-existing medical issue. If this were the case, the nurse would discuss the medical issues further with the students to obtain informed consent, which was implied through the students rolling up their sleeves and engaging in the immunization process.
The Member’s related previous discipline
The Member had received previous cautions from the school administration regarding inappropriate conduct because of a fixation on vaccine issues.
On April 15, 2014, Mr. Quistberg received an anonymous complaint through the Board’s “talking locker” program, a website designed to allow members of the student community to voice concerns without being identified. The Member testified that the messages were from a parent of a student in the Member’s class. The parent stated that the Member was telling his class that vaccines cause autism, and the parent was upset that the Member was teaching his opinion, rather than [XXX] (Exhibit 16).
On April 17, 2014, Mr. Quistberg sent the Member an email stating that a parent shared a concern regarding the expression of personal views in the classroom that vaccines are linked to autism. Mr. Quistberg wrote that “[t]eachers must be careful when sharing an opinion that would appear strongly biased.” The Member was cautioned against sharing strong personal views. Mr. Quistberg suggested to the Member that he have students research and present on conflicting theories (Exhibit 17).
Two other “talking locker” messages included concerns about the Member teaching his opinions on vaccines (Exhibit 16). The Committee notes that while these messages were anonymous when initially presented, the Member later identified who wrote them and admitted to most of the contents of the messages. According to the Member, one was sent by a student [XXX] who was upset because the Member required him to do a project on the dangers of a [XXX], even though the student wanted to change his topic; the other messages were sent by a parent who was also a teacher at the school. The Committee accepts this evidence based on the Member’s admissions.
On February 25, 2015, the Member received a disciplinary letter. This was as a result of an incident where the Member became argumentative with a student, and embarrassed her in front of the class (Exhibit 19). Student 1 was presenting her culminating project, which was on the subject of [XXX]. Mr. Quistberg described the Member’s conduct as follows in the disciplinary letter:
I have received complaints from parents and students regarding inappropriate classroom behaviour and a specific situation that took place in your classroom on Thursday, January 15, 2015. Your personal position with regard to vaccinations is clearly one-sided against vaccinations. While a student was making a presentation to the class on [XXX], you aggressively challenged her and embarrassed her in front of her peers. I heard from the parent on the matter – he was clearly displeased with your behaviour and public embarrassment of his daughter. While you did apologize to her, the incident should not have occurred in the first place. This student’s mark was changed from 50% to 95%. Clearly you are personally fixated on this topic, and virtually every student I spoke to reported similar comments. Additionally, students have reported to me that the day before the seminar was presented, you began an unannounced lecture on the negative effects of vaccination for the majority of the period without connecting it specifically to the curricular content of the day. You have also handed out information (leaflets) to students to reinforce your biased messaging. You also made an Ontario Government form available that students could use to legally avoid getting their vaccinations. Students also reported to me there are other topics you fixate on (i.e. fluoride in drinking water, 9/11 was an inside job, we didn’t walk on the moon, GMOs are bad). While you are entitled to have a personal opinion on matters, in your role as a teacher, it is essential that you present all perspectives on controversial topics. I have previously dealt with parent concerns earlier (April 17, 2014 email) from a different class with regard to presenting one-sided information on the topic of vaccinations.
In addition to presenting material with a strong bias, generally, I heard from students that you frequently fixate on these topics in your classes and show videos to support your biases. Students have told me that there is no educational value in your classes when you engage in this behaviour. Students do not feel they are prepared for university because you waste so much of their time on your own personal agenda. You are expected to use the curriculum to inform your practice and lessons.
In the disciplinary letter, Mr. Quistberg set out his expectations for the Member. These included instructions to: treat students professionally and with respect; present all sides of controversial topics; avoid sharing biased personal opinions on controversial topics; and cover a wide range of curriculum topics rather than focusing on a personal agenda. The Committee notes that in his testimony, the Member did not dispute the facts of the January 15, 2015 incident as described by Mr. Quistberg. The Member acknowledged that it occurred and apologized to Student 1.
2. The events of March 9, 2015
On March 9, 2015, Ms. Swick was leading the immunization clinic at the school. She was there as a full-time staff member of the Health Unit, and she was accompanied by three casual nurses. The nurses were administering Adacel, Adacel Polio, Menactra, and the MMR vaccine at this clinic (the MMR had been added to the usual roster of vaccines because of a local outbreak of measles and the fact that a few students were out-of-date on this immunization).
Ms. Swick greeted students initially to make sure their records were up-to-date and then started processing their paperwork. The other three nurses administered the vaccines. Ms. Swick said that students were advised of the common side effects of the vaccine, which are muscle aches, sore arms, headaches and the occasional fever or flu-like symptoms. She was available to answer any student questions.
Around 9:00 a.m., during first period, the nurses were setting up the immunization clinic when the Member came into the cafeteria. The Member acknowledged in his evidence that he was supposed to be in class during this time, but argued that he only left class for a very short time. He presented the evidence of Student 2 that he only left the class for two minutes (Exhibit 26). The Committee finds that the Member was gone for a short time in order to speak to the public health nurses and collect product monographs. It is not necessary for the Committee to make a finding as to the exact amount of time the Member spent outside the classroom. However, the Committee finds that, it is more likely than not that the Member left the classroom for more than two minutes in order to ask the nurses for product monographs, to read sections of the monographs aloud, and to give his opinions on the vaccines, as described further below.
As well, the Committee accepts Mr. Quistberg’s evidence, as admitted by the Member in his evidence, that it is a safety concern for any teacher to leave a class unsupervised. Mr. Quistberg testified that these concerns may be even more pronounced in a [XXX] class where there are [XXX], [XXX], and other types of equipment present. In his evidence, the Member disputed that his students were at risk because they were in a [XXX] class, stating that he would ensure any [XXX] materials were not accessible to students, and stating that he was teaching a university level class in which students were responsible. The Committee preferred Principal Quistberg’s evidence to the evidence of the Member where their evidence conflicted for the reasons discussed in the credibility section above.
The Member asked the nurses for product monographs for the vaccines being administered. The Member in his evidence stated that the nurses gave him two of the three product monographs, and that a nurse brought the third product monograph later to his classroom, but the Member had not cross-examined Ms. Swick about this point. Ms. Swick stated that the nurses provided the Member with product monographs for Adacel, Adacel Polio, Menactra, and the MMR vaccine. The Committee does not need to decide whether the Member was given two or three out of three product monographs in the cafeteria in order to make its decision regarding the allegations of professional misconduct.
The Member then began to read out sections of the monographs. He stated that he was concerned because many of the ingredients listed in the monograph were not allowed in his classroom because they were toxic. The Member continued to read the monographs and laugh and make comments regarding different studies and statistics. The Member said that no one had died from measles in contrast to a number of people who had died from the vaccines. Ms. Swick stated to the Member that she was not sure that his information was accurate. He then came back, put his hands down on the desk in front of her and told her, “I hope you are telling each of these students that a side effect of these vaccines is death.” The Member made the following admissions regarding his conduct: he asked Ms. Swick if she was telling students that the product monographs stated that one of the side effects of the vaccine was death, and he admitted to putting his hands on the desk, though he emphasized that the desk was large and he was not close to Ms. Swick.
Ms. Swick gave evidence that she felt threatened by the Member’s close physical presence and abrupt tone. She testified that she was nervous and uncomfortable as a result of the Member’s actions.
Ms. Swick then texted her supervisor about what happened. Ms. Swick asked that her supervisor stay close to the office in case she was needed to come to the school. She also discussed the incident with her colleagues and they decided they would tell the principal if it happened again.
The Committee finds, based on the report given to Mr. Quistberg by Vice-Principal Jeffrey Brinson by email on March 10, 2015, that the Member spoke to the vice-principal in the school’s office between 10:30 a.m. and 10:45 a.m., when the Member should have been in class supervising his students (Exhibit 21). Based on this evidence and the Member’s admission that he left the classroom earlier that morning during period 1, the Committee finds that the Member left his students alone without supervision on two occasions.
The second encounter involving the Member occurred about twenty minutes later, as the clinic was operating. At this point, there were four or five students in line to receive their vaccines. The Member came into the cafeteria through the side doors.
The parties disputed what occurred next. Ms. Swick testified at the hearing that the Member asked the students if they knew what was in the vaccines, and then shouted at them not to get the vaccines. However, her written statement of March 9, 2015 did not reference shouting, and she stated that “4 students were in line to receive vaccinations and he asked them ‘do you know what is in these vaccines, of course you don’t. Don’t do it, don’t get the vaccine.’” The Member denied that he shouted. He gave evidence that he has a loud voice, and that this can be misperceived as shouting.
The Committee finds that the Member spoke aggressively to the nurses and students during his second visit to the cafeteria. This finding is consistent with Ms. Swick’s overall evidence that the Member was adamant and antagonistic in his interactions with the nurses. It is also consistent with Mr. Quistberg’s evidence that the Member does not realize how emotionally charged he gets when speaking and the Member’s admission that his loud voice may be perceived by others as shouting. The manner in which he relayed his information was construed by the students and nurses as intimidating. The Committee finds that the Member’s communication was aggressive and that his conduct reasonably alarmed the nurses and some students (as described below).
One of the students, Student 3, reported to Ms. Swick that the Member was known to talk to his class about vaccines and that they cause autism. The other students in line also commented to the nurses that they were not surprised by the Member’s conduct.
Student 3 was interviewed by Mr. Quistberg and gave a written statement on March 23, 2015 (Exhibit 20). In her written statement, she indicated that she was in line waiting for her vaccination when the Member came into the cafeteria and asked her if she knew what chemicals were in the vaccinations. The Member said that he did and that “I wouldn’t let them pump chemicals into my body without knowing what’s in them.” She wrote that the Member also told her that getting two of the same vaccine can cause death. Student 3 explained that this “scared me, because I got 2 of the same ones, because the first one wasn’t on my record” (Exhibit 20). The Member confirmed in cross-examination that he told her that one of the side effects of the vaccine was death. He also said in cross-examination that he would be concerned about the side effects of a double vaccination.
Despite being hearsay, the Committee accepted Student 3’s written version of the event for the following reasons: (1) Principal Quistberg gave credible evidence that Student 3 had told him the same statement; (2) it is consistent with the Member’s admissions that he told students that vaccines could cause death, and that he would be concerned about double vaccination; and (3) it is consistent with Ms. Swick’s evidence of the event and Mr. Quistberg’s evidence that Student 3 was upset and concerned when he had interviewed her.
The Committee finds that the Member’s aggressive communication that vaccines can cause death and his statement to Student 3 that getting two of the same immunization can cause death made Student 3 feel afraid and upset.
Another student, Student 4, also gave a written statement on March 23, 2015. She wrote that she was in line for her needle and the Member came into the cafeteria and told the students not to get vaccinated, and tried to persuade Student 3 not to get it (Exhibit 20).
Ms. Swick then went to Mr. Quistberg’s office and explained what had occurred. Mr. Quistberg responded by locking the side door of the cafeteria. As a result, the Member would only be able to enter through the front door. They also placed the nurses’ desk so that it was facing the front door. Mr. Quistberg arranged for another teacher to watch the side door.
Ms. Swick testified that during this second interaction with the Member, she was scared for students, as she did not want anyone receiving or refusing vaccinations based on fear. She felt that students could have felt fear based on his actions. Ms. Swick discussed with her colleagues whether it was safe to continue the immunization clinic. She told Mr. Quistberg after this second incident that if the Member continued to act in a similar manner, they would close the clinic early because it was an unsafe environment for the students and the nurses. The Committee accepts Ms. Swick’s evidence that, had the clinic been shut down unvaccinated students would have had to get the vaccines by themselves, which was often difficult for students in rural areas, or they might have remained unimmunized and faced a possible 20-day suspension that may be ordered by a medical officer of health.
During second period, Student 5 approached Ms. Swick and asked her for additional vaccination fact sheets. He said he was taking them back for “Sully”. When Ms. Swick asked him who Sully was, he replied “Mr. Sullivan”. Student 5 also reported to her that the Member was telling his class not to get the vaccines. While these statements by Student 5 are hearsay evidence, they are being considered by the Committee in a limited capacity in order to contextualize the Member’s actions that day – namely, that the Member was continuing to fixate on the issue of vaccines in his classroom that day.
The third encounter between the clinic staff and the Member occurred after noon, when the clinic was complete. The Member returned to the cafeteria and asked Ms. Swick if she had given him all the product monographs and all the paperwork for each vaccine. He also wanted to know why the ingredient Thimerosal was not listed in the paperwork provided. Ms. Swick informed him that Thimerosal was not in the vaccines. The Member asked her if she was hiding something, and requested other paperwork. The Member then started to list alleged side effects of vaccines. According to Ms. Swick’s evidence, the Member was not trying to engage her in a conversation and the Member’s numerous questions amounted to making blanket statements. Another nurse tried to engage with the Member regarding her experience of working with children with polio, but he did not want to speak with her. Another nurse mentioned she was going to get Mr. Quistberg.
Ms. Swick testified that the Member was “fixated that these vaccines were going to cause death and that the content of the vaccines was toxic in his workplace.” The last incident occurred during the lunch period when there were many students present who could hear the conversation.
Ms. Swick reported that she felt threatened, and that the Member invaded her personal space. As the three nurses were packing up the clinic, they discussed that they all felt very intimidated and scared and wanted to leave together with Mr. Quistberg’s escort. Ms. Swick gave evidence that she had never had a similar disruption at a school and never had to seek the support of the school administration.
Ms. Swick testified that she would be returning to the school during the week of March 1, 2017 (following this hearing), and was in fear about the potential for further conflict. Melanie Michaels, Program Manager for the School Health Team, contacted Mr. Quistberg about the incident, and sought assurance that there would be a plan in place to ensure that nothing similar would occur when Health Unit staff returned to the school (Exhibit 23). Ms. Swick indicated that the clinic would bring additional staff because of the concerns.
Principal Quistberg conducted an investigation after the clinic was finished and spoke with a number of students who had been present, including Students 3 and 4. As a result of his investigation, Principal Quistberg found that the Member acted unacceptably by leaving his class unsupervised. As well, Principal Quistberg determined that the Member became “fixated” regarding the matter of vaccines, in the same manner in which he became fixated during the January 15, 2015 events. The principal expressed to the Member that it was not his job “to convert students and staff to [his] way of thinking with regards to vaccinations.” There was a meeting between administrators and the Member’s union representative on April 1, 2015 to discuss concerns about the Member’s conduct in which the Member’s union representative noted that there were other forums outside of the school in which the Member could express his opinions about vaccinations.
On April 10, 2015, Mr. Quistberg gave the Member a letter of discipline and suspended the Member for one day (Exhibit 25). The letter set out the principal’s concerns, directions and expectations for the Member. It stated, in part:
Tim, I am aware that you approached the Public Health Nurse in the cafeteria on Monday, March 9 2015 when she was here to vaccinate students. You wanted the product monograph for each immunization being given as you were concerned about the ingredients in them. You proceeded to read the monographs and voice your concerns that the ingredients were toxic. You further cited the number of children who have died due to vaccines. You then aggressively told the nurse, “I hope you are telling each of these students that a side effect of these vaccines is death”. Your behaviour intimidated and upset the nurse. You left the cafeteria but returned about 20 minutes later, telling students that they should not get the vaccine and that they could die as a result of being vaccine [sic]. You were also in the office during your period 2 class, as well talking about vaccinations, as confirmed by Mr. Brinson. You then returned a third time to the cafeteria at the start of lunch and accused the nurse of hiding information from you regarding the ingredient thimerosol [sic].
You left your classes unsupervised in the morning while you were pursuing this matter on at least two occasions. That is unacceptable. It is especially an issue in the [XXX] classroom as [XXX], [XXX] and equipment are within reach of students.
Tim, you have become fixated regarding this matter of vaccines. I am concerned that you feel it is your job to convert students and staff to your way of thinking with regard to vaccinations. This is clearly not your role. This behaviour must stop. I am directing you not to bring up this topic in classes. Your strong beliefs do not allow you to present this material without bias.
Here are my expectations:
You will be a positive role model for your students and treat them professionally and with respect at all times.
You will present ALL sides of controversial topics and avoid sharing strong personal opinions that are very one-sided. There are to be no biases in your positions on controversial topics. You are not to discuss vaccines or vaccinations with students any more.
You will exercise sound professional judgment in your interaction with students, staff and community members when carrying out your duties as a teacher. This includes refraining from telling students that you have been admonished by the offices and instructed not to cover the topic of vaccinations in your classes.
You are expected to supervise students in your care at all times.
In future, you are not to talk to the health nurses or be in the vicinity of the immunization team when they are in the school.
Legal findings of the allegations of professional misconduct
The Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)
The Member’s conduct was psychologically and emotionally abusive toward Student 3. The Member told Student 3 that he would not let someone pump chemicals into his body without knowing what is in them. Knowing that Student 3 had received two doses of the same vaccine, the Member told her that getting two doses of the same vaccine can cause death. The Member failed to consider the negative psychological and emotional effects that his conduct would reasonably have on students. It is understandable that Student 3 would indicate that she was scared when the Member told her getting two of the same vaccinations could cause death. Student 3 was a teenager and this information came from her [XXX] teacher who one would expect to be a trusted adult.
The Member’s indirect and direct communications to students that students should not get the vaccine and the aggressive manner of his communications amounted to intimidation that alarmed Student 3. In the context of health clinic vaccinations and coming from a [XXX] teacher, it reasonably caused Student 3 to be scared for her health. This conduct in this context amounts to psychological and emotional abuse of students.
The Committee heard evidence about previous conduct on the part of the Member in which the Member fixated on his opinions about vaccines and failed to demonstrate sufficient commitment to the emotional well-being of students. For example, the Member had received previous discipline in relation to an incident on January 15, 2015 in which Principal Quistberg determined that the Member aggressively challenged and embarrassed Student 1 when she delivered a presentation on the topic of [XXX].
The Committee also heard evidence regarding the “talking locker” message involving the Member forcing a student to study [XXX] used on the student’s family’s [XXX] when the student did not want to. The Member fixated on his opinions about chemical side effects to the point that he failed to adequately consider the negative psychological or emotional effects on the student.
While these two prior incidents did not form part of the allegations in the Notice of Hearing, and the Committee makes no findings of misconduct in relation to them, the Committee did consider this evidence as part of the overall context of the Member’s conduct.
The Member’s conduct in communicating in an aggressive manner to students in line for the vaccination clinic and telling them that they could die was psychological and emotional abuse. The Member is a [XXX] teacher and students would reasonably trust his opinions. His conduct was inconsistent with his responsibility as a teacher to support the emotional well-being of students.
The Member failed to supervise adequately a student or students who are under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)
The Member failed to adequately supervise his students by leaving his students in class twice in order to go into the immunization clinic and question the nurses about vaccines. The Member admitted in his evidence that he left his first-period class in order to attend at the vaccine clinic. The Member’s second, later absence was established through the documentary evidence of the vice-principal’s statement and Mr. Quistberg’s testimony.
The Member was not fulfilling his duties to supervise his students properly when he left his classroom unattended in order to pursue his own agenda relating to the vaccination clinic. As the Member himself acknowledged in his testimony, in any classroom “things can go awry quickly” when the teacher is not present.
Mr. Quistberg said that it was especially hazardous for a teacher to leave a [XXX] class because of the [XXX] that might be accessible there. In his comments, the Member minimized the risks that could have occurred when he left his [XXX] students alone, and tried to justify his actions by claiming that he left because he felt getting product monograph materials from the public health nurses was a good educational opportunity for his students. The Committee finds that the Member’s attempted minimization and rationalization for his actions do not excuse his misconduct. The Member had a duty to supervise his students, and he failed to do so.
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)
Subsection 264(1)(c) of the Education Act states that “[i]t is the duty of a teacher and a temporary teacher… to inculcate by precept and example … the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” Subsection 264(1)(d) states that it is the duty of a teacher “to assist in developing co-operation and co-ordination of effort among the members of the staff of the school”. Subsection 264(1)(e) mandates the duty “to maintain, under the direction of the principal, proper order and discipline in the teacher’s classroom and while on duty in the school and on the school ground.”
Subsection 264(1)(c) has been interpreted to mean that teachers should be role models, modeling the virtues listed in the provision. The Member aggressively questioned the public health nurses and intimidated students at the clinic. He was fixated on his own views and refused to engage in respectful, open-minded discussion with the nurses or others who were present. A teacher should model appropriate and courteous interactions with other individuals, whether or not a teacher agrees with their viewpoints. The Member failed to do so, and in the process acted disrespectfully towards students and guests of the school.
The Member violated subsection 264(1)(d) by failing to cooperate with the instructions of the principal not to disrupt the vaccination clinic. Instead, he intentionally disobeyed his principal.
Similarly, the Member violated subsection 264(1)(e) by failing to maintain, under the direction of the principal, proper order and discipline on the school ground. In fact, by attending at the cafeteria repeatedly even after the principal took steps to keep the Member from entering the clinic, the Member generated alarm and fear at the clinic among the nurses and students.
Overall, the evidence clearly supports a finding that the Member failed to comply with numerous provisions of the Education Act, which outline his duties as a teacher.
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)
The Member addressed students and health unit staff in a manner which was aggressive and fear-provoking. To use the language of Mr. Quistberg in his suspension letter to the Member of April 10, 2015, his behaviour “intimidated and upset” the health unit staff; he failed to “be a positive role model for [his] students and treat them professionally and with respect at all times.” The Member acted inappropriately and disrespectfully. He had no business being in the cafeteria, as health unit staff were running the clinic and teaching staff had no role in the clinic.
As explained by Ms. Swick, decisions about consent to medical treatments, including vaccinations, are to be made by parents and students, with information provided by health practitioners. The Member is not a health practitioner; he is a teacher. His professional duties do not include providing students with his opinions about the merits of vaccines, nor interfering with student vaccinations at the school health clinic. To the contrary, the Member had been explicitly warned by his principal not to dwell on the topic of vaccines before the March 9, 2015 incident. The Member ignored Mr. Quistberg’s instructions of April 2014 and February 2015 to cease discussing vaccines aggressively and with bias in class. The Member acted unprofessionally by interfering with the normal functioning of the clinic and taking an insubordinate position in opposition to his principal.
The College’s Ethical Standards for the Teaching Profession instruct members that they must abide by the standard of respect in their practice:
Intrinsic to the ethical standard of Respect are trust and fair-mindedness. Members honour human dignity, emotional wellness and cognitive development. In their professional practice, they model respect for spiritual and cultural values, social justice, confidentiality, freedom, democracy and the environment.
The Member failed to honour the principle of respect, instead treating the public health nurses with disrespect and disregarding the dignity and emotional wellness of his students during his multiple disruptions of the immunization clinic.
In sum, the Member failed to exercise proper professional judgement in his interactions with students and health staff members, causing distress and harm to them.
The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)
As noted in the Committee’s reasons in the section above, the Member’s interactions left nurses feeling threatened and uncomfortable. The nurses were required to inform their supervisor that a teacher was interfering with their ability to run the clinic. They sought assistance from Mr. Quistberg, who locked the doors closest to the Member’s class to discourage him from coming in and staff were placed in the cafeteria to ensure that there were no further incidents. The nurses discussed closing the clinic early if the Member continued interfering because they felt it was an unsafe environment. In addition to intimidating and distressing the nurses, the Member’s conduct would have left students unable to get immunized had the nurses needed to close the clinic for safety reasons. His conduct negatively affected the nurses’ ability to do their jobs and risked students’ wellbeing.
Ms. Swick also testified that she was afraid to go back to the school because of the risk of further conflict. The Member acted unacceptably in making visitors to the school feel unsafe and fearful about returning. His intimidating, disrespectful conduct was in direct conflict with the respectful, inclusive manner he was required to model as a teacher.
PENALTY
SUBMISSIONS OF COLLEGE COUNSEL WITH RESPECT TO PENALTY
College Counsel submitted that the Committee should make the following order as to penalty:
The Committee directs that the Member 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 Committee directs the Registrar of the Ontario College of Teachers 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. The fact of the suspension is to be recorded on the Register.
The Committee directs 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 from the date of the Committee’s Order, the Member shall enrol in and successfully complete at his own expense, course(s) of instruction pre-approved by the Registrar regarding appropriate professional boundaries, professional ethics and anger management, subject to the following conditions:
(i) The Member will provide to the course practitioner(s) approved by the Registrar, a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) Following review of the document noted at paragraph (i) above, the course practitioner(s) 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(s) shall also specify the length of the course(s) to be undertaken by the Member, and the assignments to be completed by the Member; and
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide the Registrar a written report from the course practitioner(s) 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.
College Counsel submitted that the proposed reprimand would provide the Member with greater insight into why his behaviour constituted professional misconduct. Counsel emphasized that a reprimand will guide him as to how to rehabilitate his practice and avoid similar misconduct in the future, thereby serving as a specific deterrent. As well, recording the fact of the reprimand on the Register will serve as a general deterrent.
College Counsel argued that the one-month suspension will promote specific and general deterrence by indicating to the Member and the profession that misconduct which is disrespectful and harmful towards members of the school community will result in serious consequences. Counsel argued it would also promote rehabilitation by providing the Member with time to reflect on his behaviour and consider how he can improve.
Further, College Counsel maintained that coursework on professional boundaries, professional ethics and anger management would serve the aims of specific deterrence and rehabilitation, by addressing the issues that led to this hearing and instructing the Member how he may avoid these issues in the future.
Counsel for the College presented one case in support of her submission: Ontario College of Teachers v. Brazil, 2009 ONOCT 9.
SUBMISSIONS OF THE MEMBER WITH RESPECT TO PENALTY
The Member left the hearing while College Counsel was making submissions on penalty.2 As a result, the Committee adjourned the penalty portion of the hearing and gave the Member the opportunity to make written submissions in lieu of a continuation of the hearing in person. The Member subsequently provided the Committee with written submissions on penalty on March 8, 2017 and College Counsel provided written reply submissions on March 17, 2017.
In his submissions, the Member reiterated his position that he did not shout at students. He submitted that it was not abuse of students to discuss informed consent and the risk of vaccines with them. He also argued that it was not harassment to ask the nurses at the school if they obtained informed consent from students, and he argued they were not obtaining proper consent from students that day.
In terms of penalty, the Member wrote that he would like to avoid a similar event in the future and asked the Committee to provide him and other members of the teaching profession with clear direction on how to address similar matters.
REASONS FOR PENALTY
The Committee deliberated on the submissions of both College Counsel and the Member. The Committee accepts College Counsel’s proposed penalty order, with the following modifications (underlined for clarity). Paragraph 3 of the order will read as follows:
- The Committee directs 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 from the date of the Committee’s Order, the Member shall enrol in and successfully complete at his own expense, course(s) of instruction pre-approved by the Registrar regarding appropriate professional boundaries, professional ethics and self-regulation, subject to the following conditions:
(i) The Member will provide to the course practitioner(s) approved by the Registrar, a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) Following review of the document noted at paragraph (i) above, the course practitioner(s) 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(s) shall also specify the length of the course(s) to be undertaken by the Member, and the assignments to be completed by the Member; and
(b) Within 30 days of his completion of the course outlined in (a) above, the Member shall provide the Registrar a written report from the course practitioner(s) 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.
(c) The Member shall be prohibited from attending at any health clinic conducted at a school where he is employed for a period of two years from the date of this decision.
The Committee found that the case presented by College Counsel was of no assistance, and it recognizes the need to focus on the unique circumstances of this case when imposing a penalty.
The Committee is of the view that a reprimand will help the Member understand why his conduct was unprofessional. It will also serve the aims of specific deterrence and rehabilitation by identifying for the Member why his interactions with the nursing staff and the students at the immunization clinic constituted professional misconduct, and will provide him with guidance on how to avoid such misconduct in the future. During the first portion of the hearing to determine whether the Member committed professional misconduct, the Member showed little insight into his behaviour, describing it as “one of the most professional things I’ve done.” Further, the Member’s attempts to justify his conduct in his penalty submissions highlight for the Committee the fact that, even after he was found guilty of professional misconduct, the Member continued to have limited insight into why his actions constituted misconduct. A reprimand is needed in order to clarify for the Member why his actions were contrary to his obligations as a teacher. Further, 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 a suspension of one month will underscore for the Member and for the profession at large the serious nature of the Member’s misconduct. It will promote the goals of specific and general deterrence by highlighting that such conduct has serious repercussions. The Committee recognizes that the Member did not intend for his conduct to be harmful, and had an honestly-held belief that it was incumbent on him to inform students about his views on vaccines, which he expressed through the presentation of his case at the hearing. However, the Member had received warnings from the administration in the past that his fixation with addressing the issue of vaccines with his students was not acceptable, and therefore he ought to have been aware of the consequences of his actions. It was inappropriate and harmful for a teacher to frighten and intimidate students and community members, and to interfere with the proper functioning of a health clinic. Such conduct can have a harmful effect on students. As well, a suspension will promote the principle of rehabilitation by giving the Member time to reflect on how he can improve his practice.
Finally, coursework on appropriate professional boundaries, professional ethics and self-regulation will educate the Member as to how he can interact with students and other individuals in a manner that is positive and respectful, regardless of his personal beliefs. Further, the Committee does not have sufficient evidence to understand the causal basis for the Member’s failure to self-regulate his conduct. A course on self-regulation will allow the course practitioner to evaluate the Member’s weakness in this regard and will address the underlying problems in order to avoid further issues in his classroom. The Committee emphasizes that it is crucial for the Member’s successful future practice for him to take seriously the lessons he learns in the assigned coursework. The Member must understand that future similar misconduct may result in harsher penalties.
Finally, the Member’s prohibition on attending at school health clinics for a period of two years will ensure that similar events do not re-occur. This is necessary in order to protect the public by ensuring that future vaccination clinics are safe spaces in which students and health unit staff do not face the risk of intimidation or harassment by the Member.
The Committee is also of the view that it would be appropriate for the Member to apologize, as he suggested, to the nurses involved in the March 9, 2015 incident.
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: May 31, 2017
Ravi Vethamany, OCT Chair, Discipline Panel
Jane Ishibashi Member, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel