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
Gaetano Aversano, OCT, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair
Brigitte Bidal Piquette, OCT
Sara Nouini, OCT
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
– and – )
GAETANO AVERSANO ) Jerry Raso,
(CERTIFICATE #257650) ) Ontario English Catholic
) Teachers’ Association,
) for Gaetano Aversano
) Renée Kopp,
) Jones Litigation Counsel LLP,
) Independent Legal Counsel
) ) Heard: October 4, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 4, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 15, 2014 (Exhibit 1) was served on Gaetano Aversano (the “Member”), requesting his presence on September 23, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for October 4, 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 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1); 2
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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
(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 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
(h) 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, Gaetano Aversano 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 Durham Catholic District School Board (the “Board”) as a teacher at [XXX]School (the “School”) in[XXX], Ontario, where he had been teaching since September 1988.
At all material times, the Member taught a grade [XXX]class at the School.
Inappropriate Conduct During the 2011-2012 School Year
One day in class, the Member approached Student 1, a grade [XXX] female student in his class, and told her to “sit back, not up” in her chair, referring to the fact that she was perched forward on the edge of her seat. Then the Member sat down behind her, on her chair, with his legs apart so that she was seated between his legs. The other students laughed. Student 1 was embarrassed because she felt singled out in front of the class by the Member’s actions.
On another occasion, the Member approached Student 2, a grade [XXX] male student in the Member’s class. He told Student 2 to “sit properly” in his chair, referring to the fact that Student 2 was perched forward on the edge of his seat, then sat down behind Student 2 on the same chair, with his legs apart so that Student 2 was seated between his legs. Student 2 thought the Member’s behaviour was weird and he felt uncomfortable.
The Member also sat behind Student 3, a grade [XXX] female student, in the same manner as described in paragraphs 4 and 5, telling her to “move back” because she had room to do so.
On occasion, the Member hugged Student 4, a grade [XXX] female student, and touched the top of her head and face when she finished her work or received a perfect mark, as a form of praise.
The Member touched the faces and cheeks of female students in his class, played with their hair, and called them “beautiful.”
The Member touched or rubbed his students’ shoulders as he leaned over their desks to check their work.
Inappropriate Comments and Conduct During the 2011-2012 School Year
In or around November 2011, Student 5, a male student in the Member’s class, laughed out loud when the Member said the word “potato.” The Member responded to Student 5 by attempting to speak with a [XXX]accent. Student 5 was offended by the Member’s response, because he felt the Member was making fun of his culture.
In or around May 2012, the Member checked the work of Student 6, a male student in the Member’s class. As he pointed out some errors, the Member said to Student 6: “what the heck is this?” and tossed his work onto the desk. The Member’s comments and behaviour made Student 6 feel uncomfortable around the Member.
On occasion, when frustrated with his students the Member yelled at them and threw workbooks on the floor in front of them. The Member’s actions made some of the students feel uncomfortable.
Investigation
As a result of a parent complaint on or about May 28, 2012, the Board assigned the Member to home duties and contacted the Durham Children’s Aid Society (“CAS”).
The CAS investigated and verified that the Member touched children on their shoulders, head and cheeks, and physically sat behind students in the same chair. The CAS did not verify any child protection issues, concluding there was no indication of “inappropriate intentions” by the Member when he engaged in this behaviour. However, the CAS advised the Board that the Member “should be encouraged to maintain a hands-offs policy at all times.” Attached hereto and marked as Exhibit “B” is a copy of the CAS Letter to the Board dated June 12, 2012.
The principal interviewed nine students from the Member’s class, following which administration concluded the allegations had been substantiated. The Board found the Member’s conduct “highly troubling” in light of the fact that the Member had been disciplined previously by school administration, warned by the CAS, and admonished by the Ontario College of Teachers with respect to maintaining appropriate professional boundaries by avoiding all physical contact with students. The Board suspended the Member without pay from January 11 to June 30, 2013, and transferred the Member to a new school for the 2013-2014 school year. Additionally, as a condition of ongoing employment, the Member was required to complete an individualized course of instruction regarding appropriate and professional boundaries with an expert selected by the Board. Attached hereto and marked as Exhibit “C” is the Board’s Letter to the Member dated April 9, 2013.
The Member met with Dr. Louise Arnold, Associate Professor, OISE / University of Toronto, on five occasions between June 18 and July 22, 2013. At the conclusion of their sessions, Dr. Arnold prepared a Report summarizing her views and recommendations. Attached hereto and marked as Exhibit “D” is Dr. Arnold’s Report dated August 19, 2013.
Dr. Arnold remarked that the Member’s motives appeared pure, but his style of teacher-student interaction was “highly inappropriate” and he needed to change his behaviour “radically” to avoid further difficulty in his teaching practice. He had allowed himself to become far too casual with his students, assuming a somewhat playful role in the classroom “which is unacceptable for any teacher, and perhaps especially when working with students in late childhood.” In her opinion, his “most significant error in judgment was not heeding the admonishions [sic] of both the Board and the College of Teachers when this problem was first addressed in 2009”, pointing out that on three separate occasions over the past three years, he had been admonished for professional misconduct as a result of inappropriate interactions with students. By the end of their sessions, Dr. Arnold was optimistic that the Member gained significant insight and will “do his best to exercise far more caution and better judgment in his future teaching practice.”
Prior Incidents
In April 2009, the Member was suspended for five days without pay by his Board for an incident of inappropriate physical contact with a grade [XXX] male student. Attached hereto and marked as Exhibit “E” is a copy of the Board’s letter to the Member dated April 27, 2009, which specifically instructed the Member not to make physical contact with a student.
On June 22, 2010, the Investigation Committee of the Ontario College of Teachers admonished the Member with respect to the incident referred to in paragraph 18 above.
By letter dated June 10, 2011, the Member received a written caution from his principal for putting his hands on students’ shoulders and squeezing. The principal noted that the Member had been cautioned previously by the Ontario College of Teachers to not have physical contact with students. Attached hereto and marked as Exhibit “F” is a copy of the Principal’s Written Caution to the Member dated June 10, 2011.
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(7), 1(7.2), 1(15), 1(18) and 1(19).
By this document4 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 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 (c) and (e) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) and 1(7.3) of Ontario Regulation 437/97 and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act, 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(7), 1(7.2), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 20 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(7), 1(7.2), 1(15), 1(18) and 1(19).
Paragraphs 4-12 and 14-20 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, 11 and 12 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).
Paragraphs 4-12, 16 and 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 4-12 and 14-20 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 4-12 and 14-20 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 disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 4-12 and 14-20 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 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) upon his return to teaching primary, junior or intermediate school students, the Member must notify the Registrar in writing of the date of his return and the name of his employer;
(b) not more than 30 days prior to returning to teach primary, junior or intermediate school students, the Member shall, at his own expense, meet with Dr. Louise Arnold (or another specialist who has been pre-approved by the Registrar if Dr. Arnold is not available), for an individualized instruction session relating to the Member’s understanding of the importance of adhering to professional boundaries with students;
(c) within 30 days of meeting with Dr. Arnold, the Member shall provide to the Registrar written confirmation from Dr. Louise Arnold stating that Dr. Arnold:
(i) has received and reviewed 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) has met with the Member as required in (b) above for an individualized instruction session relating to the Member’s understanding of the importance of adhering to professional boundaries with students;
(iii) has agreed to meet with the Member to provide a minimum of two additional individualized instruction sessions, at intervals to be recommended by Dr. Arnold, within the first 12 months of the Member’s return to teaching primary, junior or intermediate school students;
(d) within 30 days of his third meeting with Dr. Arnold as outlined in (c) (iii) above, the Member shall provide to the Registrar a written report from Dr. Arnold:
(i) stating the dates on which the Member was seen and reporting on the progress of the Member with respect to addressing the goals of the individualized instruction sessions.
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. Robertson, 2016 ONOCT 45 and Ontario College of Teachers v. Eyiah, 2015 ONOCT 20.
The Committee finds that the Member’s pattern of inappropriate conduct warrants a reprimand by his peers. The Member repeatedly made students feel uncomfortable by sitting behind students on the same chair on three separate occasions, hugging a student, touching the head, face, hair and cheeks of female students, and touching or rubbing students’ shoulders as he leaned over their desks to check their work. He mocked a student’s culture, and yelled and tossed workbooks on the floor in front of students. Members of the teaching profession are expected to serve as positive role models and to maintain appropriate professional boundaries with students. The Member fell short of meeting these expectations. 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 imposition of terms, conditions or limitations including the requirement that the Member attend individualized instruction sessions relating to his understanding of the importance of adhering to professional boundaries with students is appropriate in this case. The Committee is concerned that the Member continued to engage in inappropriate behaviour in the classroom despite having been admonished in the past. The Member was suspended for five days in April 2009 by his Board for making inappropriate physical contact with a Grade [XXX] student. Furthermore, the Member was cautioned in writing by his principal in June 2011 for putting his hands on student’s shoulders and squeezing. The Member was also suspended by his employer from January 11, 2013 until June 30, 2013 because the Board found that the Member’s repeated conduct undermined the “public confidence of parents.” The Committee expects that the individualized instruction sessions will assist in the rehabilitation of the Member, enable him to develop better insight into his obligations as a teacher, and help him to make better decisions in any future interactions with students.
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 4, 2017
Robert Gagné
Chair, Discipline Panel
Brigitte Bidal Piquette, OCT
Member, Discipline Panel
Sara Nouini, OCT
Member, Discipline Panel