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
David Michael McClenaghan, OCT, a member of the Ontario College of Teachers.
PANEL: Ravi Vethamany, OCT, Chair Jane Ishibashi Wes Vickers, OCT
BETWEEN: Caroline Zayid, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk
ONTARIO COLLEGE OF TEACHERS
– and –
DAVID MICHAEL McCLENAGHAN (CERTIFICATE #656056)
Lauren Sheffield, Cavalluzzo LLP, for David Michael McClenaghan
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: October 11, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 11, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated May 11, 2017 (Exhibit 1) was served on David Michael McClenaghan (the “Member”), requesting his presence on May 31, 2017 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 11, 2017.
The Member was in attendance for the hearing and had legal representation.
THE ALLEGATIONS
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (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 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);
(c) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);
(d) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);2
(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).
AGREED STATEMENT OF FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
At all material times, David Michael McClenaghan was 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 with respect to the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”).
At all material times, the Member and Person A were involved in a domestic relationship.
In or around July 2013, during an argument while the Member was driving Person A to work, the Member hit Person A in the upper part of her left arm. Later that day, when the Member picked Person A up from her work, he apologized.
In or around spring 2015, the relationship between Person A and the Member ended. In or around May 2015, Person A contacted the police and made certain allegations about the Member, which resulted in the Member being charged with eight offences alleged to have occurred between 2012 and 2015 in relation to Person A. Attached hereto and marked as Exhibit “B” is a copy of the Court Information in relation to the Member.
On or about September 22, 2016, the Member pleaded guilty to, and was found guilty of one count of assault in relation to the incident described in paragraph 4 above.
The Member received a conditional discharge and one year of probation with terms, including no contact with Person A. The Member fully complied with the terms of his probation, which expired on September 22, 2017. The remainder of the charges were withdrawn at the request of the Crown on September 22, 2016. Attached hereto and marked as Exhibit “C” is a copy of the Transcript of Proceedings in the Ontario Court of Justice before Justice Lapkin, dated September 22, 2016.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the 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(15), 1(16), 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 the Discipline Committee’s decision and reasons shall be published on the College’s website, and 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 him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea 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
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(17) of Ontario Regulation 437/97, be withdrawn. The Committee granted this request.
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the 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 as alleged, contrary to Ontario Regulation 437/97, subsections 1(15), 1(16), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 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(15), 1(16), 1(18) and 1(19).
Paragraphs 4, 5, 6 and 7 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 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16).
Paragraphs 4, 5, 6 and 7 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 and 7 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 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 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 of 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 professional boundary issues, subject to the following conditions:
(i) the Member will provide to a course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) 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 of 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
The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. 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 penalty proposed by the parties is also within a reasonable range, based on the following analogous case presented by College Counsel: Ontario College of Teachers v. Jordan, 2016 ONOCT 64.
The Committee finds that the Member’s criminal conduct warrants a reprimand by his peers. The Member was found guilty of one count of assault involving an individual with whom he had a personal relationship. Members of the teaching profession are expected to uphold the standards of the profession and to model appropriate behaviour both in and out of the classroom at all times. The Member failed to meet these expectations and, through criminal conduct, eroded the public’s trust and confidence in teachers and harmed the reputation of the teaching profession. 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 Committee finds that the course of instruction regarding professional boundary issues will assist in the rehabilitation of the Member. The Member’s actions reflect badly on the profession as a whole and the Committee believes that the coursework will cause the Member to reflect on his misconduct and to make better decisions in the future. The coursework will also remind the Member of his obligations as a teacher, both in and out of the classroom.
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: October 11, 2017
Ravi Vethamany, OCT
Chair, Discipline Panel
Jane Ishibashi
Member, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel