Ontario College of Teachers v. Patry, 2017 ONOCT 73

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Patry 2017 ONOCT 73

Date: 2017-11-06

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

Alexander Jeremy Patry, OCT, a member of the Ontario College of Teachers.

PANEL: Claudia Patenaude-Daniels, OCT, Chair Jean-Luc Bernard, OCT Sara Nouini, OCT

BETWEEN: ) Vladimira Ivanov, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano, ) Law Clerk

– and – )

ALEXANDER JEREMY PATRY ) Joshua Phillips, (CERTIFICATE #524076) ) Ursel Phillips Fellows Hopkinson LLP, ) for Alexander Jeremy Patry ) Robin McKechney, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: November 6, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 6, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated July 20, 2015 (Exhibit 1) was served on Alexander Jeremy Patry (the “Member”), requesting his presence on September 8, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 6, 2017.

The Member was in attendance for the hearing and had legal representation.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)¹ of 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);

(b) he released or disclosed information about a student to a person other than the student or the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

(c) he abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

(d) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;³

(f) 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);

(g) 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);⁴

(h) 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);⁵

(i) 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);

(j) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(k) he practised the profession while the member is in a conflict of interest, contrary to Ontario Regulation 437/97, subsection 1(26).

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:

1. Alexander Jeremy Patry was, at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. The Member was employed by the Hamilton-Wentworth District School Board (the “Board”) since 2007 as a teacher at [XXX] School (the “School”) in Hamilton, Ontario and a teacher at [XXX] School in [XXX], Ontario. The Member has no prior disciplinary record with the Board or the College.

3. At all material times, Student 1 and Student 2 were [XXX]-year-old female students of the School.

Student 1

4. Between the fall of 2013 to January 2014, Student 1 and the Member met on several occasions in the Member’s classroom alone.

5. On or about January 15, 2014, the Member:

(a) was alone in a classroom behind closed doors with Student 1;

(b) discussed personal issues with Student 1.

Student 2

6. From in around November 2013 to January 2014, the Member exchanged inappropriate text messages with Student 2.

7. Student 2 gave the Member her cell phone number because she was doing some [XXX] with him.

8. The Member texted Student 2 before her birthday and set up a time to meet at School because he wanted to give her a birthday gift which were [XXX].

9. During the Christmas break, the Member texted Student 2 until approximately 4:00 a.m. and thereafter the Member and Student 2 engaged in texting every few days after that.

10. The Member texted Student 2 and told her about a dream he had about her and that he wanted to tell her about the dream. The Member and Student 2 set up a meeting at School for January 8, 2014, but in the end the Member was not able to make it.

11. The text messages from the Member to Student 2 contained inappropriate comments which included, but are not limited to:

(a) “Watch out, I’ll jello wrestle u”;

(b) “It’s when you wrestle in a pool of jello lol. I’ve always wanted to do that…Or mud wrestle”;

(c) “Omg…not only will I tell u a secret but also the crazy dream I had last night. You wouldn’t believe it even if I told you”;

(d) “Can’t wait to tell you, it will take a lot of guts for me to get it out but eventually I will”;

(e) “Honestly, wish I could get a hug by you. I’m such a softy sometimes”;

(f) “Let me know when and where and I will swoop u away…Swoop=steal away”;

(g) “What did u say, ulike my bum?!? Huh? Lol”.

Attached hereto and marked as Exhibit “B” are copies of the text messages between the Member and Student 2.

Personal Business

12. The Member took 2-3 days off per school year to attend conferences with his wife for his personal business and would use sick days. This is not the purpose for which sick days were available.

13. In response to a student query regarding the student’s family’s proposed purchase of new cell phones, the Member provided information to parents of the student regarding the Member’s private business in this area.

14. The Member communicated with other students as well as their parents and colleagues soliciting for his personal business. Attached hereto and marked as Exhibit “C” are copies of email communications from the Member to the student’s parent. This was inappropriate.

Disclosure of Confidential Information

15. The Member disclosed confidential information to Student 2 about another student.

Board Action

16. The Member’s employment was terminated by the Board on or about February 10, 2014. Attached hereto and marked as Exhibit “D” is a copy of the discipline letter from the Superintendent of Student Achievement of the Board to the Member. The discipline was the subject of a formal grievance, which was later settled on mutually agreeable terms.

College’s Professional Advisory

17. The Ontario College of Teachers approved a professional advisory on use of electronic communication and social media on February 23, 2011. Attached hereto and marked as Exhibit “E” is a copy of the College’s advisory.

GUILTY PLEA

18. By this document,⁶ the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).

19. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(6), 1(7.2), 1(15), 1(18), 1(19) and 1(26).

20. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College, Professionally Speaking/Pour parler profession;

(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 this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

21. 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 (c), (e), (g) and (h) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1), 1(7.3), 1(16) 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(5), 1(6), 1(7.2), 1(15), 1(18), 1(19) and 1(26).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 17 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(6), 1(7.2), 1(15), 1(18), 1(19) and 1(26).

Paragraphs 5-6 and 8-16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 15 and 16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member released or disclosed information about a student to a person other than the student or the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6).

Paragraphs 6, 9-11, and 15-16 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 5-6 and 8-16 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 5-6 and 8-16 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 5-6 and 8-16 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).

Paragraphs 12-14 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member practised the profession while the member was in a conflict of interest, contrary to Ontario Regulation 437/97, subsection 1(26).

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:

1. 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”);

2. 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;

3. 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 three months after the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and professional ethics, subject to the following conditions:

(i) the Member will provide to the course practitioner(s) 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(s) will provide to the Registrar, for approval, a syllabus for the proposed courses 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;

(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner(s) which:

(i) confirms that the Member has successfully completed the course(s) and reports on the progress of the Member with respect to addressing the outlined goals of the course(s).

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 cases presented by College Counsel: Ontario College of Teachers v. Gerwin, 2014 ONOCT 42 (“Gerwin”), Ontario College of Teachers v. Rosewell, 2016 ONOCT 46 (“Rosewell”) and Ontario College of Teachers v. Burdett, 2011 ONOCT 8.

The Committee finds that the Member’s wide range of inappropriate conduct warrants a reprimand by his peers. The Member repeatedly met with a student alone in his classroom and, on at least one occasion, he discussed personal issues with that student behind closed doors. Over the course of a couple of months, the Member also exchanged inappropriate electronic communications with another female student, which included making references to “jello wrestling” and hugging the student, and he offered her a gift. The Committee is concerned by the Member’s failure to maintain appropriate boundaries with these students. The Member also used sick days to attend conferences for his personal business and he solicited students, parents and colleagues for this business. It is inappropriate for members of the profession to misuse sick days and to use their position as a teacher to solicit business for personal gain. Furthermore, the Member disclosed confidential information about a student to another student, which is yet another example of the Member’s poor professional judgment. 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 suspending the Certificate of Qualification and Registration of the Member for a period of six months is proportionate to the misconduct committed by the Member. The Member’s misconduct was serious and extensive, as set out above. The duration of the suspension is within a reasonable range as established by other similar cases before the College’s Discipline Committee, including Gerwin and Rosewell. The suspension will serve as a specific deterrent to the Member and should cause him to reflect on the serious nature of his misconduct, and recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the course(s) of instruction regarding appropriate boundaries and boundary violation issues, and professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students and the school community.

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: November 6, 2017

Claudia Patenaude-Daniels, OCT

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Footnotes

1. 1Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
2. 2Allegation withdrawn.
3. 3Allegation withdrawn.
4. 4Allegation withdrawn.
5. 5Allegation withdrawn.
6. 6For the purposes of paragraphs 18 and 20, this “document” refers to the Agreed Statement of Facts and Guilty Plea.