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 William Vesey, a retired member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair
Claudia Patenaude-Daniels, OCT
Marie-Claude Yaacov
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
– and – )
DAVID WILLIAM VESEY ) Adam Webb,
(CERTIFICATE #145851) ) Ursel Phillips Fellows Hopkinson LLP, ) for David William Vesey
) Erica Richler,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) ) Heard: October 5, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 5, 2017 at the Ontario College of Teachers (the “College”) at Toronto. A Notice of Hearing dated October 26, 2015 (Exhibit 1) was served on David William Vesey (the “Member”), requesting his presence on October 30, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 5, 2017.
The Member was not in attendance for the hearing (other than the delivery of the penalty order and the reprimand, which was delivered via video conference). He did, however, have legal representation throughout the hearing.
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 abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);2
(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;3
(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).
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:
David William Vesey is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times during the 2008-2009 and 2009-2010 school years, the Member was employed by the Ottawa-Carlton District School Board (the “Board”) and taught at [XXX]School in Nepean, Ontario.
At all material times, Student 1 was a grade [XXX] female student at the School and in the Member’s [XXX]class.
At all material times, Student 2 was a grade [XXX] male student at the School and in the Member’s [XXX]class. He also played [XXX]on a team coached by the Member in the community.
[XXX[ Demonstration
The “[XXX]” is a [XXX] demonstration designed to demonstrate the large amount of [XXX] produced by the combustion of [XXX]. A bottle containing a mixture of [XXX], resulting in a rapid combustion reaction, often accompanied by a “[XXX]” sound and flames, as the [XXX] vapour in the bottle briefly ignites. The speed and intensity of the reaction is determined by the concentration of [XXX]. The bottle must be made of [XXX] – any other material could be prone to combustion or explosion and result in dangerous shrapnel flying everywhere. For all of these reasons, the [XXX]demonstration is dangerous if not conducted in a carefully controlled environment.
The Member performed the demonstration hundreds of times over the course of his teaching career without incident.
On or about May 8, 2009, the Member conducted the [XXX]demonstration in class for Student 1’s birthday. Student 1’s sister, who was not a student in the class, was present and videotaped the demonstration.
The Member coated the insides of a large blue [XXX] water cooler bottle by [XXX] inside it, then poured out any excess [XXX]. He set the bottle on a table between one and two metres in front of Student 1’s desk, where she was seated. The other students gathered around her desk.
Student 1 pushed herself back, to be further from the experiment. The Member asked the class if they were ready, then turned off the lights. He lit a match and held it to the mouth of the bottle as the [XXX] were escaping.
Unfortunately, an accident occurred due to an issue with the bottle. Colleague A, a [XXX]teacher who co-taught some of the students in the Member’s class, was present at the back of the classroom during the demonstration. He reported seeing flames shoot up almost to the ceiling, followed by a loud blast as pieces of the water cooler bottle were ejected by the ignition. No one in the room was wearing [XXX].
Some pieces of the bottle landed on the Member’s desk. The Member extinguished these pieces with his hand.
The vice-principal reported reviewing the video footage of the demonstration taken by Student 1’s sister, and being surprised by the suddenness of the unexpected explosion. She reported observing that no one in the classroom was wearing any [XXX] during the demonstration.
The Member acknowledges that he failed to ensure that all reasonable safety precautions and procedures were in place when he conducted this demonstration and that he failed to establish a safe learning environment at the time of the demonstration.
Oxygen Deprivation Demonstration
On or about May 11, 2009, the Member was teaching his grade [XXX] [XXX]class a lesson on[XXX]. During the class, he conducted a demonstration he used to teach the production of [XXX]as[XXX]. Students breathe into a bag, which causes their breathing to increase as the level of [XXX]grows. The Member had previously sought medical advice to confirm that the demonstration was safe.
As part of the demonstration, the Member placed a white plastic bag over Student 2’s head. It appeared to Colleague A, who was present in the classroom during the Member’s demonstration, that the Member held it closed at the back of Student 2’s neck; however, Student 2 later stated that the Member had not held the bag closed.
Colleague A reported that the students watching the demonstration appeared shocked and looked at Colleague A for his reaction. Colleague A further reported that Student 2 looked “spooked” when the bag was removed from his head.
The Member then took a larger black plastic garbage bag and placed it over his own head, to perform the demonstration on himself.
At the time he performed this demonstration, the Member believed that the demonstration posed no safety risk to students due to the medical advice that he had received. However, he acknowledges that the appearance created by placing a plastic bag over the student’s head was inappropriate.
Board Investigation
On or about May 13, 2009, Colleague A reported the incidents to the principal. By letter dated July 3, 2009, the superintendent advised the Member that following the Board’s investigation into the [XXX] demonstration, the Board concluded that the Member “did not take the appropriate safety precautions to ensure student safety when conducting the [XXX] demonstration”.
In the letter, the superintendent explained to the Member that because he was not familiar with the [XXX] demonstration, he consulted with a number of colleagues and discovered that the demonstration was not used in other secondary schools. Although he acknowledged that the Member had medical documentation indicating it was considered a safe demonstration, he pointed out that “the perception of the activity, as we have learned, can result in a different impact”. The Member was directed to “immediately eliminate the [XXX] and [XXX] demonstrations from [his] teaching repertoire”. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated July 3, 2009. The Member complied, and did not perform either demonstration again for the remainder of his teaching career.
The Member commenced a medical leave on February 1, 2010 until his retirement, effective February 29, 2012.
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(5), 1(15), 1(18) [unprofessional], 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 this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1) and 1(7.3) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Committee granted these requests.
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(15), 1(18) [unprofessional] and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 21 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(15), 1(18) [unprofessional] and 1(19).
Paragraphs 10-20 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 10-20 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 10-20 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 10-20 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 4), 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 by video conference link or Skype or other electronic communication, from 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) prior to commencing or returning to teaching or any position requiring a Certificate of Qualification and Registration (“Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding safety procedures and maintaining a safe environment in the classroom, 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;
(c) the Member shall not teach or work in any position for which a Certificate of Qualification and Registration is required unless he has completed the above coursework.
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. Gumulak, 2016 ONOCT 23 and Ontario College of Teachers v. De Barros, 2017 ONOCT 5.
The Committee finds that the Member’s repeated failure to ensure student safety warrants a reprimand by his peers. The Member conducted the [XXX] described above without ensuring anyone in his class was wearing [XXX]. The demonstration went awry, flames shot up to the ceiling and pieces of the [XXX] exploded and were projected around the classroom. On a separate occasion, the Member conducted a demonstration in which he placed a plastic bag over a student’s head. Although the Member had previously received medical advice that this demonstration was safe, it “spooked” a student. Members of the teaching profession are expected to provide students with a physically and emotionally safe learning environment at all times. The Member’s conduct demonstrated a lack of appreciation of this obligation. 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 notes that the reprimand will be delivered via video conference as agreed to by the parties. The Committee is satisfied, based on the medical evidence presented (see Exhibit 5) that the Member is unable to attend to receive his reprimand in person. While it is not common for reprimands to be delivered via video conference, the Committee accepts that this is appropriate in the circumstances.
The Committee finds that the course of instruction regarding safety procedures and maintaining a safe environment in the classroom 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, should he return to a Teaching Position.
Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: October 5, 2017
Robert Gagné
Chair, Discipline Panel
Claudia Patenaude-Daniels, OCT
Member, Discipline Panel
Marie-Claude Yaacov
Member, Discipline Panel