Ontario College of Teachers v. Odjig, 2017 ONOCT 93

WARNING: In accordance with subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any students who were involved in this case.

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Odjig 2017 ONOCT 93

Date: 2017-11-14

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 Ronnie Joseph Odjig, a member of the Ontario College of Teachers.

PANEL: Vicki Shannon, OCT, Chair Robert Gagné Shanlee Linton, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS Christine Wadsworth, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

-and-

RONNIE JOSEPH ODJIG (CERTIFICATE # 162470) Ronnie Joseph Odjig, Self-represented

Erica Richler and Robin McKechney, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: May 15, 16 and 17, 2017

DECISION ON FINDING AND REASONS FOR DECISION

Contents

PUBLICATION BAN.. 4 OVERVIEW... 4 THE ALLEGATIONS. 5 MEMBER’S PLEA.. 8 EVIDENCE.. 8 College Witnesses. 9 [XXX]. 9 Student 3. 16 [XXX]. 18 Teacher 1. 20 Teacher 2. 22 The Member’s Testimony. 24 SUBMISSIONS OF COLLEGE COUNSEL.. 29 SUBMISSIONS OF THE MEMBER.. 31 REPLY SUBMISSIONS OF COLLEGE COUNSEL.. 33 DECISION ON FINDING.. 33 Onus and Standard of Proof 34 Decision. 34 REASONS FOR DECISION.. 34 The Member’s credibility. 35 Factual findings. 37 Particular 8(a): The College did not establish that the Member said to Student 1 words to the effect of “with lips like that, you could do a lot of things”, or that he placed his hand on his belt in a sexually suggestive manner. 37 Particular 8(b): The Member made comments to Student 2 about her weight 42 Particular 8(c)(i): The Member said to Student 3 words to the effect of “Oh, look at you [Student 3]” and “Check me out” 44 Particular 8(c)(ii): Referring to an [XXX] used in class, the Member said to Student 3 words to the effect of “Hey [Student 3], let me see our [XXX]. Hey class, does it look more like her or me?”. 46 Particular 8(c)(iii): The Member said to Student 3 words to the effect of “Sure, I’ll take anything from you” when Student 3 offered the Member a muffin. 48 Particular 8(c)(iv): The Member called Student 3 by nicknames without her permission. 50 Particular 8(c)(v): The Member told another student words to the effect of “Tell [Student 3] I’m busy, I can’t hang out tonight 51 Particular 9(a): The Member pinched the cheeks of Student 2. 53 Particular 9(b): The College did not establish that the Member placed his hands on the shoulder of Student 4 55 Particular 10(a): The Member called Teacher 1 a “sexy blonde”. 57 Particular 10(b): The Member said to Teacher 1 that her cheeks were chubby. 59 Particular 10(c): The Member talked about grabbing Teacher 2’s cheeks and said words to the effect of “Can I give you a cheeky?”. 61 Particular 10(d): The Member made comments about Teacher 3’s appearance and/or dress. 63 Particular 11: The Member grabbed and/or touched Teacher 1’s arm and/or cheeks. 67 Legal conclusions. 68 Factual findings that do not amount to professional misconduct 68 Factual findings that amount to professional misconduct 70 1(5): The Member failed to maintain the standards of the profession. 71 1(7): The College did not establish that the Member abused a student or students verbally. 74 1(7.1): The College did not establish that the Member abused a student or students physically. 75 1(7.2): The Member abused students psychologically or emotionally. 75 1(7.3): The College did not establish that the Member sexually abused a student or students. 76 1(15): The College did not establish that the Member failed to comply with subsection 264(1) of the Education Act 77 1(18): The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional 77 1(19): The Member engaged in conduct unbecoming a member. 79 Conclusion. 80 PENALTY.. 81

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 15, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated June 29, 2016 was served on Ronnie Joseph Odjig (the “Member”), requesting his presence on July 26, 2016 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 15, 2017. The proceedings continued on May 16 and May 17, 2017.

The Member was in attendance throughout the hearing of this matter and he was self-represented.

PUBLICATION BAN

In accordance with subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996 (the “Act”), the Committee has ordered that no person shall publish the identity of, or any information that could disclose the identity of, any students who were involved in this case. All student names will therefore be anonymized in this decision.

OVERVIEW

The allegations of professional misconduct in this matter arose as a result of the Member’s alleged conduct during the 2013-2014 academic year. The Member was a teacher at [XXX] School (the “School”) at the time, and the School administration received several complaints from students and teachers regarding his conduct. The complaints generally involved the Member’s alleged inappropriate comments or gestures, some of which the complainants believed to be sexual harassment. Several of the Member’s students and colleagues claimed that the Member’s conduct and remarks had made them feel uncomfortable.

The Member denied all of the allegations of professional misconduct against him. He claimed that School administration had weaved together a story to ruin his reputation, and that none of it was true.

The Committee must determine whether the facts alleged by the College have been proven, on a balance of probabilities, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee finds the Member guilty of professional misconduct, for having contravened subsections 1(5), 1(7.2), 1(18) and 1(19) of Ontario Regulation 437/97. The College has not proven that the Member breached subsections 1(7), 1(7.1), 1(7.3) or 1(15) of Ontario Regulation 437/97. A subsequent date will be set to hear submissions with respect to penalty.

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 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);

(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;

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Ronnie Joseph Odjig is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the [XXX] as a teacher at [XXX] School in [XXX], Ontario.

3. At all material times, Student 1 was a [XXX]-year-old female student at the School.

4. At all material times, Student 2 was a [XXX]-year-old female student at the School.

5. At all material times, Student 3 was a [XXX]-year-old female student at the School.

6. At all material times, Student 4 was a [XXX]-year-old female student at the School.

7. At all materials times, Teacher 1, Teacher 2, and Teacher 3 were female colleagues of the Member who taught at the School.

8. During the 2013-2014 academic year, the Member made inappropriate comments to students which included:

(a) Saying to Student 1 words to the effect of “with lips like that, you could do a lot of things”, and placing his hand on his belt in a sexually suggestive manner;

(b) Making comments to Student 2 about her weight;

(c) Towards Student 3:

(i) saying words to the effect of “Oh, look at you [Student 3]” and “Check me out”;

(ii) about an [XXX] used in class, saying words to the effect of “Hey [Student 3], let me see our [XXX]. Hey class, does it look more like her or me?”;

(iii) when Student 3 offered the Member a muffin, saying words to the effect of “Sure I’ll take anything from you”;

(iv) calling Student 3 by nicknames without her permission;

(v) telling another student words to the effect of “Tell [Student 3] I’m busy, I can’t hang out tonight”.

9. During the 2013-2014 academic year, the Member engaged in inappropriate physical contact with students which included:

(a) Pinching the cheeks of Student 2;

(b) Placing his hand on the shoulder of Student 4.

10. During the 2013-2014 academic year, the Member made inappropriate comments to colleagues, including comments of a sexual nature. The comments included:

(a) Saying to Teacher 1 that she was a “sexy blonde”;

(b) Saying to Teacher 1 that her cheeks were chubby;

(c) Talking about grabbing Teacher 2’s cheeks and saying words to the effect of “Can I give you a cheeky?”;

(d) Making comments about Teacher 3’s appearance and/or dress.

11. During the 2013-2014 academic year, the Member grabbed and/or touched Teacher 1’s arm and/or cheeks.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

EVIDENCE

College Witnesses

The College called five witnesses:[XXX]; Student 3;[XXX[; Teacher 1; and Teacher 2. Teacher names have been anonymized for consistency with the Notice of Hearing. Student names have been anonymized consistently with the Notice of Hearing and in accordance with the publication ban that the Committee ordered. Relevant portions of the witness’s evidence will be set out in greater detail in the Committee’s reasons for decision, below.

[XXX]Background

[XXX] (“Principal [XXX]”) is an experienced educator who worked as a teacher for approximately three years before moving into the role of vice-principal during his third year of teaching. He then worked as a principal for approximately 14 years. At the time of the hearing, he was employed as a Student Success Lead for the [XXX].

Principal [XXX] took over the duties of principal at the School from the Member in 2009 and he remained in that role until 2016. Principal [XXX] was the School principal at all material times, and he was the only administrator at the School during that period. Principal [XXX] has completed a substantial number of additional qualifications and continuing education courses and he has been heavily involved in the education community, as is evident from his curriculum vitae and his Registered Member Information (see Exhibits 3 and 4). He testified that he is very familiar with the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (see Exhibit 28) and that he reviewed these standards with teachers on at least an annual basis. He further testified that he had formed an opinion about whether the Member had met the standards of the profession. In his opinion, the Member’s conduct fell below the standards of the profession.

Participant Expert

College Counsel sought to qualify Principal [XXX] as a participant expert on the issue of appropriate boundaries between teachers and students and between teachers and their colleagues. According to the College, it would be appropriate to qualify Principal [XXX] as such, given his significant experience as an educator and an administrator, and his involvement in the investigation of the complaints regarding the Member. College Counsel also relied on two decisions of the Discipline Committee in which participant experts were qualified as such in similar circumstances: Ontario College of Teachers v. Germundson, 2016 LNONCTD 71 and Ontario College of Teachers v. Douglas, 2017 ONOCT 18 (“Douglas”).

The Member did not take issue with Principal [XXX] qualifications, but objected to Principal [XXX] giving expert evidence based on his involvement in the Board’s discipline process.

The Committee found that it was appropriate to qualify Principal [XXX] as a participant expert for the following reasons. First, the Committee accepted that expert evidence was relevant and necessary to the Committee’s determination with respect to whether the Member met the standards of the teaching profession. Second, Principal [XXX] has significant experience as an educator and an administrator and he has a strong understanding of the standards of the teaching profession. Third, Principal [XXX] participated in the investigation into the Member’s alleged conduct and formed an opinion about the Member’s conduct in the course of his duties as principal. This participation was the basis for the Member’s objection, but the Committee determined that Principal [XXX] met the test for a participant expert.

The Committee qualified Principal [XXX] as a participant expert on the issue of appropriate boundaries between teachers and students and between teachers and their colleagues. Principal [XXX] meets the definition of a participant expert as set out in Westerhof v. Gee Estate, 2015 ONCA 2016 (“Westerhof”) in that he is a witness who “[formed] opinions based on [his] participation in the underlying events rather than because [he was] engaged by a party to the litigation to form an opinion” (Westerhof at paragraph 6). Such a witness can give opinion evidence where the opinion is based on the witness’s observation of or participation in the events at issue, and the witness formed his or her opinion based on the ordinary exercise of his or her skill, knowledge, training and experience (see Douglas at page 6).

Testimony

Principal [XXX] testified about his investigation into various issues involving the Member’s conduct. Although some of the complaints date back to 2011 (several years before the allegations set out in the Notice of Hearing), this evidence was simply provided as background information to explain that the Member had engaged in an inappropriate pattern of behaviour. Principal [XXX] first met the Member in 2009 and, as the School principal, he was responsible for investigating the complaints that were made against the Member. As part of his investigation, Principal [XXX] met with the various complainants, he documented his notes from these meetings in daily journals, and he asked the complainants to provide him with their own written accounts of the events in question.

Principal [XXX] first received complaints about the Member in 2011, which he documented in his daily journal entries from March 31, 2011 and April 8, 2011 (see Exhibits 5 and 6). According to two female students who complained to the principal, the Member had made them feel uncomfortable through his comments and his physical proximity to them. Principal [XXX] met with the Member to relay these concerns to him, to encourage him to be more cautious around female students, and to review the key principles of sexual harassment training. The principal did not formally discipline the Member at the time because he did not believe that it was necessary.

In September 2012, Principal [XXX] gave the Member a verbal and a written warning about his punctuality issues (see Exhibit 7 and Exhibit 8). The principal testified that the Member was late on more than one occasion, which led to the written warning on September 19, 2012.

In late November 2012, another incident was brought to the principal’s attention, involving the Member. A student had reported that the Member was blocking the entry to the [XXX] and asked the student if his stomach was too big. She responded, “Yeah, a little bit,” to which the Member replied, “That’s not the only thing that’s big” (Exhibit 9). Principal [XXX] testified that the student’s parents were very emotional and angry about this incident and that they addressed it with him and with the director of education at the time. The student also provided the principal with a written statement describing the incident in her own words (see Exhibit 9).

As a result of this incident, the Member received a second written warning from Principal [XXX] on December 18, 2012 (see Exhibit 10). The Member was also suspended without pay for one day, as part of the progressive discipline process. Principal [XXX] testified that he believed that the Member’s conduct constituted sexual harassment and that it was a breach of the standards of the profession. He noted that he had addressed his concerns at the time with the Member, who disputed them. The principal encouraged the Member to watch his language around students and to be more careful with the types of jokes that he told (see Exhibit 11).

During the 2013-2014 academic year, Principal [XXX] received a number of complaints regarding the Member from students and teachers. He testified about the way that he handled these complaints, the relevant portions of which are described in greater detail in the Committee’s reasons for decision, below.

Principal [XXX] testified that he had asked the teachers and students to document their complaints, but that he did not instruct them what to write in their signed statements. Following his receipt of these complaints, Principal [XXX] relayed his concerns to Mr. [XXX], the director of education at the Board. On June 18, 2014, Principal [XXX] and Mr. [XXX] met with the Member to address the complaints. The Member was offered the opportunity to have another staff member attend the meeting to support him, but he refused this courtesy (see Exhibit 20). Following this meeting, the Member was suspended with pay (pending the completion of the investigation) and escorted off the School premises (see Exhibit 25). Principal [XXX] testified that this was done out of concern for the welfare of staff and students at the School, and to ensure that the investigation process would not be tainted.

The principal then individually interviewed a number of students at random to determine whether any teacher (without specifically referencing the Member) had made them feel uncomfortable. Several students indicated that the Member had made them or others feel uncomfortable (see Exhibits 20 and 21).

On July 11, 2014, the Board terminated the Member’s employment because of the numerous complaints of sexual harassment against him from his colleagues and students (see Exhibit 26). Principal [XXX] testified that the Member breached the Board’s “Harassment in the Workplace” policy, which was in effect and made available to teachers during the 2013-2014 academic year (see Exhibit 27). The principal further testified that the Member failed to maintain the Ethical Standards and the Standards of Practice for the Teaching Profession (see Exhibit 28). In particular, Principal [XXX] noted that the Member failed to meet three ethical standards: 1) Care; 2) Trust; and 3) Respect. He further testified that the Member failed to meet two standards of practice: 1) Commitment to Students and Student Learning; and 2) Leadership in Learning Communities.

Cross-examination

During cross-examination, the Member asked Principal [XXX] a series of questions about why he did not discuss the complaints with the Member before matters escalated. The principal disagreed with the Member and reiterated that his daily journal notes indicate that he did try to discuss the complaints with the Member, but that the Member consistently dismissed them as frivolous.

The Member cross-examined Principal [XXX] on the topic of incident reports. He asked the principal why no incident reports were prepared with respect to the complaints made against him. Principal [XXX] responded that incident reports were only prepared in matters involving student discipline. They were not meant to be used when a teacher’s conduct was at issue.

The Member asked Principal [XXX] why he did not go to greater lengths to find a resolution to the complaints through some form of mediation. Principal [XXX] responded that mediation was not an option because the Member dismissed the complaints outright when they were brought to his attention, and the principal did not believe that the Member was prepared to engage in any type of mediation at the time. Moreover, given that students were not comfortable being in the same room as the Member, mediation was not a viable option.

The Member questioned the investigation process that Principal [XXX] followed and suggested that the principal had coached several complainants with respect to their written statements. The Member further questioned the vocabulary used in student statements, suggesting that they were too similar or too advanced given the students’ ages. Principal [XXX], however, disagreed and reiterated that he was not involved with the preparation of any of the statements that he received. He added that it was not surprising for grade [XXX] students to use words such as “uncomfortable” or “not appreciated” and he insisted that the students were very capable.

The Committee asked Principal [XXX] to clarify whether the Member was advised of the complaints as they were brought to the principal’s attention. According to Principal [XXX], he addressed the 2011 and 2012 complaints with the Member as they were brought to his attention. With respect to the April 2014 complaint involving Student 1, Principal [XXX] explained that he wanted to gather more information before addressing the issues directly with the Member. Finally, with respect to the other incidents that were brought to the principal’s attention after the Member was assigned to home with pay (during the investigation), Principal [XXX] indicated that some of that information was not immediately shared with the Member because he had been suspended during the investigation.

Student 3

Student 3 was [XXX] years old at the time of the hearing, but during the 2013-2014 academic year, she was a Grade [XXX] student at the School. Student 3 has known the Member for her entire life, through her family’s connections to him. The Member was not Student 3’s teacher during the time of the events in question, but he sometimes filled in as her [XXX] teacher and they also occasionally interacted in the hallways or outside of the School.

Student 3 testified about the Member’s inappropriate interactions with her and she described the tone that he used with her as “too nice”. Relevant details of her specific complaints against the Member are set out in greater detail in the Committee’s reasons for decision, below.

Student 3 testified that she was not the only person at the School who was on the receiving end of the Member’s inappropriate comments; other students had complained about the Member making similar types of comments to them, and Student 3 testified that she witnessed the Member make an inappropriate comment to a female teacher.

According to Student 3, she never asked the Member to stop making inappropriate comments to her because she was worried that he would make some sort of inappropriate comment about that request as well. She testified that she only told Principal [XXX] about these incidents at the end of the year because she did not think that it was as big a problem as it was until she learned that others had experienced similar issues. Student 3’s family had also told her that this was not the first time that these issues had arisen with the Member and that she should just try to avoid him. Student 3 tried to avoid the Member by not going to her locker ([XXX]) and instead sharing a locker with another student.

Student 3 testified that she found the Member’s conduct to be inappropriate and she added that no other teachers had ever made those types of comments to her or made her feel uncomfortable as the Member had.

Cross-examination

During cross-examination, Student 3 reiterated that she wrote her statement (Exhibit 24) without any assistance or coaching from Principal [XXX] and that the comments she included were entirely her own. When asked by the Member whether it was suggested to her that she use the word “uncomfortable” in her written statement, Student 3 responded that nobody suggested that she use that word and that she could not think of a better word to describe the way the Member had made her feel. Student 3 confirmed that the principal did not approach her to ask about the Member’s conduct in particular, but that Principal [XXX] simply asked her how her year had gone and asked her if she had any trouble during the year (without mentioning the Member).

The Member also asked Student 3, during cross-examination, why she did not tell him he had gone too far with what he described as “jesting”. Student 3 responded that she did not feel that she needed to tell him anything because he should have known that the comments he made were inappropriate. Student 3 added that she always wanted to say something about his inappropriate comments but she did not know what to say or do about them. The Member apologized to Student 3 and said that he did not know he made her feel uncomfortable and he did not intend any harm.

The Member asked Student 3 if she was suggesting that he was the only staff member at the School who behaved unprofessionally. Student 3 responded that he was indeed the only one.

[XXX]

Mr. [XXX]began teaching at the School in 2001 and he taught there at all material times. He met the Member in the fall of 2001 and he taught in the classroom adjacent to the Member’s for at least ten years. Mr. [XXX]testified about the inappropriate comments that he saw the Member make to both students and teachers. Relevant portions of his evidence will be described in greater detail in the Committee’s reasons for decision, below.

Mr. [XXX]testified that he believed that the Member’s conduct toward students and teachers constituted sexual harassment because the Member made them feel uncomfortable by making sexually suggestive comments to them. Mr. [XXX]testified that the Member’s inappropriate conduct escalated and became more habitual over time.

Cross-examination

During cross-examination, the Member asked Mr. [XXX]about an incident involving a student in November 2012. The student reported that the Member blocked the entrance to a classroom and asked, “Is my stomach too big?” The student responded, “Yeah, a little bit,” to which the Member replied, “That’s not the only thing that’s big” (see Exhibit 9). The Member denied having made these comments and asked Mr. [XXX] if he had any reason to have the student’s statement altered. Mr. [XXX] responded that he did not even know that the student’s statement existed until the Member showed it to him during his cross-examination. He added that he did not recall the situation and was not present during this incident. The Member put to Mr. [XXX] that he was present during the incident and that he was the individual holding the door open for the Member’s students. Mr. [XXX], however, disagreed and reiterated that he had no involvement with this incident and had never heard about it until the Member raised the issue in cross-examination.

The Member also put it to Mr. [XXX] that it was he (and not the Member) who made the alleged inappropriate comment to Student 1 that “with lips like that, you could do a lot of things.” Mr. [XXX] disagreed with this suggestion and denied having made that comment.

The Member repeatedly asked Mr. [XXX] why he did not create incident reports for all of the issues that he discussed in his testimony, to which Mr. [XXX] consistently responded that incident reports were only needed to report student behaviour and not inappropriate teacher behaviour.

Teacher 1

Teacher 1 (as she is described in the Notice of Hearing) received her certificate of qualification and registration in 2007 and taught at the School from 2012 until 2014. She currently teaches at another high school in Ontario. She first met the Member when she began teaching at the School. She did not teach any classes with him, but they both taught in the [XXX].

Teacher 1 testified that the Member made inappropriate comments to her on several occasions and that he made unwanted physical contact with her on a couple of occasions, which made her feel uncomfortable. Teacher 1 explained that she did not confront the Member about these incidents at the time because she is non-confrontational and because she was worried about jeopardizing her employment by causing any trouble at the School. She was a [XXX] teacher who was not a member of the [XXX]community in which she taught. Teacher 1 testified that she actively tried to avoid the Member and that she only reported his conduct once it escalated considerably over the course of the couple of years that she taught at the School. Relevant details of Teacher 1’s evidence are set out in greater detail in the Committee’s reasons for decision, below.

Teacher 1 testified that she spoke to other teachers about her concerns and that some, including Teacher 2 and Teacher 3, had dealt with similar types of comments from the Member. These other teachers did not influence Teacher 1’s written statement in any way.

According to Teacher 1, the Member did not provide students with an emotionally safe learning environment. She noted that many of the students at the School experienced socio-economic hardships and that it was particularly important for these students to feel that their school was a safe space in which they could trust the adults around them.

Cross-examination

During cross-examination, the Member questioned Teacher 1 about her written statement (Exhibit 16) and Teacher 1 confirmed that she prepared it before meeting with School administration. The Member also questioned Teacher 1 about her familiarity with the procedure for reporting incidents at the School and Teacher 1 confirmed that incident reports were used for student incidents, but not to report incidents that occurred between teachers. Teacher 1 believed that the best way to handle incidents between teachers would be to report them to School administration as she had done (and not to fill out an incident report form).

The Member also put it to Teacher 1 that he never sensed any of her discomfort and he asked her why she never told him that he had made her feel uncomfortable and why she never asked him for an apology. Teacher 1 responded that it should have been obvious that his conduct made her uncomfortable. She further explained that she wanted to give the Member the benefit of the doubt at first, because she did not know him very well, and she had hoped that he would realize that his behaviour was entirely inappropriate. In addition, Teacher 1 reiterated that she was not a member of the [XXX]community and she was worried about bringing a complaint against the Member who was part of that community. She was concerned that she might be persecuted for bringing her complaints forward against the Member, who was a former principal at the School.

With respect to Teacher 1’s testimony that she had discussed her concerns about the Member with other teachers who had experienced similar issues, the Member suggested that that was gossip and that it was unprofessional. Teacher 1 disagreed. She testified that teachers who were experiencing the same form of harassment had every right to discuss their situations with one another in order to support one another and to work through their difficulties.

Teacher 2

Teacher 2 began her career as a teacher in 1998 and she moved into the role of [XXX] in 2010. She first met the Member when he began working at the School.

Teacher 2 testified that the Member made inappropriate comments to her on several occasions between January and June 2014. Relevant details of these incidents will be described in greater detail in the Committee’s reasons for decision, below.

Teacher 2 testified that she had discussed the Member’s conduct towards her with Teacher 1, who had similar experiences with the Member, but that Teacher 1 did not influence her written statement in any way or tell her what to write in her statement. Teacher 2 added that she and Teacher 1 discussed the Member’s behaviour because it had made both of them feel uncomfortable.

Teacher 2 further testified that she was aware of the incident that occurred in the fall of 2012, in which the Member had blocked the entry to the [XXX] and asked a student if his stomach was too big, to which the student responded that it was and the Member then replied, “That’s not the only thing that’s big.” Teacher 2, a [XXX] at the time, was present for the meeting between the School administration and the student’s parents that followed this incident. She testified that the student was removed from the Member’s class because of this incident, since she did not feel comfortable in his class. She could not recall any other time that a student needed to be removed from a teacher’s class.

Teacher 2 testified that female students approached her (in her role as a [XXX]) with concerns about the Member on a fairly regular basis. She explained that she did not receive complaints every day, but that she certainly received complaints annually. Students generally complained that the Member made them feel uncomfortable because of the way he looked at them in his class. Teacher 2 always reported these concerns to the School principal.

According to Teacher 2, the Member’s behaviour had a negative effect on the School environment because he made students feel uncomfortable around him, which affected their learning. Similarly, Teacher 2 felt uncomfortable when she was around the Member at the School and she tried to avoid him to the extent possible.

The Member’s Testimony

The Member did not call any witnesses, but he testified on his own behalf.

Throughout the hearing, the Member had an [XXX] present on his desk. He explained that this holds a cultural significance to his [XXX]community as it sends the message that the truth will be spoken, which is why it is often present for the purposes of conflict resolution.

The Member denied the allegations against him and began his testimony by explaining that he believed that Principal [XXX] and Mr. [XXX], his director of education at the time, orchestrated this entire situation to ruin his reputation. He relied on his typed personal notes to support this claim (see Exhibit 32), as well as his written response to the allegations against him that he had provided to a College investigator (see Exhibit 33).

The Member explained that he liked to laugh and “jest”, but that he never had any ill intent or acted inappropriately. According to the Member, he never engaged in any conduct of a “sexual nature”, and any suggestion that he did must have been misconstrued by others. The Member further testified that several of the complainants were coached by School administration in preparing their complaints. He felt that he was being used a scapegoat for the School’s shortcomings.

The Member presented a number of reference letters dated between June 2005 and May 2017 as evidence of his good character (see Exhibit 35). College Counsel objected to the admissibility of these reference letters on the basis that some of the letters pre-date the allegations set out in the Notice of Hearing by several years and are therefore irrelevant, and because of concerns that the authors of these letters were not informed of the purpose for which they would be used (i.e. as good character evidence during the Member’s discipline hearing). The Committee decided to admit the letters into evidence as they were sufficiently relevant to the Member’s defence. Nevertheless, the Committee gave limited weight to this evidence as the vast majority of the letters did not directly address the Member’s character as it relates to the specific allegations of misconduct in the Notice of Hearing. For example, two letters were written years before the alleged misconduct and one of the authors is now deceased. In addition, the majority of the letters related to the Member’s abilities as an educator generally and did not speak to his reputation with respect to maintaining appropriate boundaries with teachers and students.

The Member addressed the evidence that was raised during the testimonies of the College’s witnesses. He responded to Principal [XXX] first written warning dated September 19, 2012 (Exhibit 8), in which the principal gave the Member a written warning about his continued punctuality issues. In his response letter dated September 27, 2012 (Exhibit 42), the Member claims that he was being treated unfairly because a number of other staff members were also late but received no reprisals.

With respect to Principal [XXX] second written warning dated December 18, 2012 (see Exhibit 10), the Member presented his written response to that warning dated January 17, 2013 (see Exhibit 40). In his response, among other things, the Member denied the allegations of sexual harassment against him; he claimed that he was never cautioned to be careful about how he communicated with students; he accused the principal of not following the proper procedures in dealing with the concerns that were raised; and, he claimed that the principal was treating him like a scapegoat to divert attention away from the School’s shortcomings (see Exhibit 40). Principal [XXX] maintained his position in a responding memo dated January 25, 2013 (see Exhibit 41).

With respect to the “that’s not the only thing that’s big” comment that was attributed to the Member (see Exhibit 9), the Member claimed that it was actually Mr. [XXX] who made this comment and not him.

The Member also responded to Student 3’s evidence that her family (who had known the Member for a long time) had told her to avoid him if he was bothering her because this was not the first time that issues had arisen involving the Member. According to the Member, Student 3’s family would have been referring to the fact that he liked to “jest” and “horse around” but they would not have been implying that he was a “sexual harasser”.

The Member also responded to several of the allegations particularized in the Notice of Hearing. His defence to several of these allegations is set out in greater detail in the Committee’s reasons for decision, below.

Finally, the Member testified that he was very proud of his School and his community, and his role in shaping the School while he served as its principal in 2006-2007 (several years prior to the events in question).

Cross-examination

During cross-examination, College Counsel questioned the Member about the character references that were entered into evidence as Exhibit 35, asking why only one of the letters was about the Member’s character for the purposes of these proceedings. The Member responded that he had asked his references to address this issue but did not know why only one of them did. He indicated that he had told his references about the nature of the allegations and that they were beside themselves, but that he did not think that it was appropriate to share the detailed particulars with them.

College Counsel also questioned the Member about the fact that he had questioned the character of several of the students who had made complaints against him, indicating that these students were often absent from school or had discipline problems. The Member did not provide a clear response when he was asked whether he was calling into question the character of these complainants to suggest that their statements were not credible.

College Counsel asked the Member what he thinks sexual harassment is. The Member responded that he believes that sexual harassment must be blatant or intentional. College Counsel then had the Member look at the Board’s “Harassment in the Workspace” policy (Exhibit 27) and suggested to him that conduct does not need to be “blatant” to be considered harassment. While the Member did not disagree with the definition provided in Exhibit 27, he explained that nobody had ever suggested to him that he was offending them or making unwanted sexual advances.

When College Counsel suggested that the Board’s harassment policy provides that a number of other behaviours (other than sexual advances) can constitute sexual harassment including leering, making sexually suggestive comments or gestures, or making unwelcome remarks or jokes, the Member agreed that these behaviours might also constitute harassment but that it was never his intention to sexually harass anyone. College Counsel then asked whether the Member thought that it was his intention or the recipient’s perception of his behaviour that mattered. The Member responded by asking why the complainants laughed at his conduct, which led him to believe that his conduct was not objectionable. The Member acknowledged, however, that teachers were expected to comply with the Board’s sexual harassment policy.

College Counsel cross-examined the Member about the fact that he appeared to question the authenticity of several written statements, including that of Teacher 1 and Mr. [XXX] (see Exhibits 16 and 22), despite the fact that they both testified that these were their signed statements and that they were produced without any outside influence. The Member responded by saying that he was not suggesting that they did not write their statements, but that the statements seemed odd and that they did not appear to be in the expected writing style (in the case of Mr. [XXX] in particular). When pushed on this issue and asked again whether the Member was suggesting that someone else wrote these statements, the Member responded that he was not suggesting that.

College Counsel asked the Member what possible motivation several of the complainants in this matter (including Student 3, Teacher 1, Teacher 2 and Teacher 3, and several other students) had to not tell the truth. The Member did not know and could not explain why all of them would have complained about him if his actions did not make them feel uncomfortable.

College Counsel cross-examined the Member about a number of incidents that were addressed over the course of this hearing. For instance, with respect to the “that’s not the only thing that’s big” comment that was attributed to the Member (see Exhibit 9) and that he claimed Mr. [XXX] said, College Counsel asked the Member why a student would have said in her written statement dated November 25, 2012 that the Member made the comment. The Member did not know why she would have said that he made the comments, but he suggested that the investigation was conducted in a sloppy manner. When asked whether people at the School often mistook him for Mr. [XXX], the Member avoided the question and indicated that that was not the issue. The Member went on to explain that he had gone to the student’s home to apologize to her and to resolve this incident, but that the student did not seem to think that there was any issue to resolve.

The Member’s responses from his cross-examination regarding a number of the allegations particularized in the Notice of Hearing are set out in greater detail in the Committee’s reasons for decision, below.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct for having breached each of the heads of misconduct set out in the Notice of Hearing. According to the College, the Member has engaged in a pattern of misconduct towards female students and colleagues, which included making inappropriate comments that were at least sexually suggestive, and making physical contact that included grabbing the cheeks of a teacher and a student. College Counsel clarified that the College was not seeking a finding of misconduct based on any of the events that occurred prior to the 2013-2014 academic year. The prior incidents that were raised during this hearing provide important background information that demonstrates that the Member’s conduct did not suddenly occur in the 2013-2014 academic year, but rather that it came to a head at that time. The Member’s conduct did not improve despite warnings that he received from School administration.

College Counsel submitted that the College witnesses were all clear and consistent with their evidence and that their evidence was supported by documentary evidence authenticated by the witnesses. All written statements were prepared without coaching from School administration. The witnesses’ evidence was unshaken during cross-examination and they all confirmed that the Member had made staff and students feel uncomfortable at the School because of his inappropriate comments and gestures.

According to College Counsel, the Member was very evasive during cross-examination and his answers were not always responsive to the questions asked. Despite having claimed to have an excellent recollection of certain events like his June 18, 2014 meeting with School administration, College Counsel submitted that the Member conveniently had little recollection of other events that occurred around the same time and which formed part of the allegations against him.

College Counsel submitted that the Committee had received sufficient evidence to find the Member guilty of professional misconduct for having breached subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. She reviewed the relevant evidence with the Committee that supports a finding of professional misconduct under each of these heads of misconduct.

According to College Counsel, the Member lacked any insight into why his behaviour was inappropriate or how it affected others. He repeatedly testified that any comments he might have made were in jest, and that none of the complainants ever indicated to him that he was making them feel uncomfortable at the time. The College submitted that none of this matters. It is not the responsibility of a victim of sexual harassment to confront their harasser. It also does not matter what the intentions behind a comment were if they made someone feel uncomfortable. College Counsel submitted that the Member’s lack of insight is troubling considering that he is an experienced educator who was in a position of trust and authority.

SUBMISSIONS OF THE MEMBER

The Member denied all of the allegations against him and urged the Committee not to make a finding of professional misconduct against him. He submitted that he was truthful in his testimony and that he was surprised and disappointed to hear the evidence of the College witnesses that was contrary to his evidence. He submitted that there must have been collaboration in order to prepare the allegations that led to his dismissal from the School, and he suspected that there was fabrication, embellishment, and sensationalism in the allegations against him. The Member submitted that there was so much consistency in the language used in the documentary evidence and written statements that there must have been coaching from School administration. He also submitted that the documentary evidence contained a lot of conjecture but not a lot of certainty. The Member further suggested that witnesses may have been advised or counselled about what to say during the hearing.

The Member submitted that the School was chaotic before he joined its staff from the public school system. He submitted that he worked very hard to raise the standards at his school to match those established by the Ontario College of Teachers, and to also maintain his [XXX]community’s traditions. Once the Member felt that he had helped the School progress during his year as principal, he decided to return to teaching (instead of continuing to serve as principal) so that he could get back to the “front lines”. The Member submitted that the School administration was often dysfunctional after he stepped down from his role as principal. The Member spoke of a rift that developed between School staff and administration, and he felt mistreated by administration who he claimed acted unprofessionally and failed to conduct a fair or proper investigation.

With respect to the allegations against him, the Member described them as [XXX] (loosely translated to “as if”). By that, he meant that the allegations were impossible, ridiculous and cannot be. They did not happen, could not happen, and never will happen.

The Member maintained that his rapport with those in the School community remained “second to none”. He went on to explain that his rapport was “not the best” but that he has had no complaints of any kind of harassment. He submitted that the complaints in this matter are only the opinions of those who think that way, and that he did not think that way.

The Member urged the Committee to seriously consider his testimony, given what he described as the errors, contradictions, vagueness, opinions and guesswork of others. He urged the Committee to rule in his favour. He submitted that if anyone needed a reminder of what the standards of the profession are, then it surely is not only him.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel replied to two of the submissions of the Member. First, with respect to his suggestion that there was collaboration among witnesses and School administration, College Counsel submitted that there was not a shred of evidence presented by the Member to substantiate that claim. To the contrary, the witnesses were all asked about this topic and they all testified under oath that they wrote their statements without coaching, and they authenticated their written statements.

Second, College Counsel took great exception to the suggestion that she might have advised witnesses what to say during the hearing. She insisted that she would never tell a witness to fabricate evidence or to perjure themselves under oath and that this certainly did not occur at any point during these proceedings.²

DECISION ON FINDING

Onus and Standard of Proof

The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, the parties’ submissions and the relevant jurisprudence presented, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Ronnie Joseph Odjig committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(18) and 1(19).

The Committee does not find that the Member contravened subsections 1(7), 1(7.1), 1(7.3) or 1(15) of Ontario Regulation 437/97.

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions of both parties. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Committee first comments briefly about the Member’s credibility; it then sets out its factual findings (organized in accordance with the particulars contained in the Notice of Hearing); and finally, the Committee determines whether these factual findings amount to professional misconduct under the heads of misconduct alleged in the Notice of Hearing.

The Member’s credibility

Given that almost all of the evidence presented in the Member’s defence came directly from the Member, the Committee will comment briefly about some of the credibility issues that arose during the Member’s testimony. The Committee has significant concerns with the Member’s credibility regarding several issues in this case, and sets out these concerns at the outset of its reasons. The Committee will comment on the credibility of the College’s witnesses as needed, with respect to certain portions of their evidence, in the reasons that follow. Generally, the Committee did not have significant concerns with the credibility of the other witnesses in this matter.

First, the Committee finds that the Member’s evidence was externally inconsistent in several respects. For instance, the Member denied having made Student 2 feel uncomfortable when he pinched her cheeks, despite the consistent documentary evidence from both Student 2 and Principal [XXX] indicating that the student felt uncomfortable. Furthermore, the Member questioned the authenticity of several of the written statements presented during his hearing, despite having heard directly from several witnesses that they produced their statements alone and that they were not coached in any way when doing so. The Committee is concerned that the Member often held to his position despite having been presented with direct evidence to the contrary.

Second, the Committee finds that the Member’s evidence contained several internal inconsistencies. For instance, with respect to Teacher 1’s testimony that the Member made her feel uncomfortable when he commented that she looked very young, the Member testified that he would never have said anything like that. The Member later testified that he might have mistaken Teacher 1 for a student on a few occasions when she was chatting with a group of students. Moreover, in his written response to the College investigator in this matter, the Member wrote, “I always tell everyone how young they look… helps their self-esteem” (see Exhibit 33). Similarly, the Member denied having made any comments about Teacher 3’s appearance or dress during his testimony, but he later testified that he did make a comment to Teacher 3 about her attire. The Member’s evolving testimony calls into question his credibility with respect to some of the allegations in question.

Third, the Committee finds that portions of the Member’s evidence were implausible. For instance, with respect to the “that’s not the only thing that’s big comment”, the Member denied having made this comment, but he also testified that he had gone to the student’s home to apologize to her and to resolve this incident. It is implausible that the Member would have gone to a student’s home to apologize if he had absolutely nothing for which to apologize. Similarly, the Member’s explanations for the “let me see our [XXX]” comment were implausible. The Member initially denied this allegation. Then he said that he did not know if he said it but that he did not think he did. Then, the Member testified that he had heard this comment made in other schools. When pushed about whether he was suggesting that teachers in other schools made this sort of comment, the Member responded that students in other schools (and not teachers) made these types of comments. The Committee finds that the Member’s version of events was inconsistent and ever-changing as he was questioned about this issue during cross-examination.

Finally, the Committee finds that several of the Member’s responses to College Counsel were evasive or unresponsive during cross-examination. He would often neither admit nor deny suggestions that were put to him by College Counsel, but he rarely offered credible explanations in support of his position. For instance, with respect to the “Sure I’ll take anything from you” comment, the Member claimed that it was difficult for him to recall the specifics of an incident that occurred three years ago when he has dealt with hundreds of students in his career. This explanation begs the question of how the Member was able to deny each of the other incidents that occurred three years ago if he actually had a limited recollection. This evasiveness calls into question the Member’s credibility with respect to some of the issues addressed in this hearing.

Factual findings

Particular 8(a): The College did not establish that the Member said to Student 1 words to the effect of “with lips like that, you could do a lot of things”, or that he placed his hand on his belt in a sexually suggestive manner

The Committee does not find that the Member made this comment or engaged in the conduct alleged at paragraph 8(a) of the Notice of Hearing. The College presented insufficient evidence to prove this allegation. The Committee received evidence from Principal [XXX], Mr. [XXX] and the Member about this allegation.

Evidence in relation to paragraph 8(a) of the Notice of Hearing

Principal [XXX] testified that, during the 2013-2014 academic year, he received a number of complaints regarding the Member. In April 2014, Student 1 complained that the Member made an inappropriate comment having to do with her lips. The comment had a sexual undertone that made her feel extremely uncomfortable. Student 1, who did not testify before the Committee, provided the principal with a written statement about the Member dated April 24, 2014 (see Exhibit 12).

On June 18, 2014, Principal [XXX] followed up with Student 1 about the statement that she prepared in April 2014. The principal took notes of his follow-up interview with Student 1, in which he indicated that he had not forgotten about her concerns regarding the Member and he asked the student to provide more specific information about what occurred during the incident that she reported (see Exhibit 20). According to Principal [XXX] notes, Student 1 agreed to provide him with an additional letter that included a more detailed explanation of the incident. The Committee, however, did not receive this evidence and Principal [XXX] did not testify about having received any additional documentation or information from Student 1.

Principal [XXX] also followed up with Mr. [XXX] about this incident, as part of his investigation, because Mr. [XXX] claimed to have observed the incident. Mr. [XXX] provided a written statement to Principal [XXX] in which he indicated that the Member suggested to Student 1 that, “with lips like that, you could do a lot of things,” and he subsequently moved his right hand to his belt (see Exhibit 22).

Mr. [XXX] also testified about this incident. According to Mr. [XXX], the Member walked into his (Mr. [XXX][XXX]) [XXX]class where Student 1 was putting on lipstick or lip-gloss. The Member made a comment to Student 1 along the lines of “you could do a lot with those lips” and he then made a motion with his index finger and thumb toward the zipper of his pants. Two other students then escorted the Member out of the classroom. Mr. [XXX] testified that the class was full of students at the time and that Student 1 appeared to be upset and offended by the comment.

Mr. [XXX] added that he told Student 1 to go to the principal’s office to report the incident to Principal [XXX]. Mr. [XXX] also provided a verbal report to the principal himself, followed by a written report a few weeks later (see Exhibit 22). Mr. [XXX] testified that he was not told what to write in his written statement and he was not coached in any way by School administration; he simply wrote what he recalled of the incident. According to Mr. [XXX], the Member’s comment and his hand gesture were very inappropriate and sexually suggestive.

During cross-examination, the Member put to Mr. [XXX] that it was him (and not the Member) who made the inappropriate comment to Student 1 about her lips. Mr. [XXX] disagreed with this suggestion. The Member also asked Mr. [XXX] why there was no incident report created for the incident involving Student 1. Mr. [XXX] responded that incident reports were only used to report student behaviour not staff behaviour. Mr. [XXX] did not believe that it was necessary to write an incident report about another staff member, which is why he simply gave a verbal report to the principal, followed by a written statement (when he was asked to do so as part of the principal’s investigation).

The Member also gave evidence about this incident when he was cross-examined by College Counsel. He denied making the comment to Student 1 that “with lips like that, you could do a lot of things”, and he denied pointing to his pants in a sexually suggestive manner. The Member reiterated that it was Mr. [XXX] and not he who had made that comment. College Counsel asked the Member why Student 1’s written statement dated April 24, 2014 refers to her having felt harassed by the Member and not by Mr. [XXX] (see Exhibit 12). The Member had no explanation and stated that he did not “know why all of these stories were knitted together.”

Reasons for finding in relation to paragraph 8(a) of the Notice of Hearing

The Committee does not find that the College has proven, on a balance of probabilities, the allegation set out at paragraph 8(a) of the Notice of Hearing, as the Committee received insufficient evidence to substantiate this allegation.

Given the gravity of this allegation, the Committee expected to receive more substantial evidence from Principal [XXX] investigation into this matter. Instead, the Committee received evidence that Student 1 raised concerns with the principal on April 24, 2014, and that nothing was done about these concerns until June 18, 2014. Student 1’s written statement was very general and did not refer to any statement about her lips or any gesture made by the Member (see Exhibit 12). She was asked on June 18, 2014 to provide additional information regarding her concerns (see Exhibit 20). The Committee, however, received no such evidence further detailing Student 1’s concerns. Student 1 did not testify and the College did not present any documentary evidence from Student 1 that specifically explained how the Member made her feel uncomfortable or that made any reference to the comment and gesture alleged at paragraph 8(a) of the Notice of Hearing.

The Committee received Mr. [XXX][XXX] written statement about this incident dated June 26, 2014 (see Exhibit 22). Mr. [XXX][XXX] written statement is brief, it contains few details given the gravity of the allegation, and it is dated months after the alleged incident. The Committee also received vague oral testimony from Mr. [XXX] that he had verbally reported this incident to Principal [XXX] a few weeks before he submitted his written report.

The Committee has concerns with the reliability of this evidence and does not find that Mr. [XXX][XXX] evidence or oral testimony in relation to this incident was credible. If Mr. [XXX] had reported a serious incident of sexual misconduct to Principal [XXX], it is implausible that weeks would have passed before the School administration took any action or even began to investigate the matter. The Committee also received fairly detailed notes from Principal [XXX] logging his daily activities. It is unlikely that such a significant event would have been unrecorded in any of the notes that the Committee received from Principal [XXX], if Mr. [XXX] had indeed provided a verbal report to Principal [XXX]. The absence of any such notes from Principal [XXX] calls into question the reliability of this portion of Mr. [XXX][XXX] evidence. Given the implausibility of Mr. [XXX][XXX] version of events and the lack of consistency in this portion of his testimony, the Committee did not rely on Mr. [XXX][XXX] evidence regarding the allegation set out at paragraph 8(a) of the Notice of Hearing.

Of the witnesses who provided evidence of their observations of this alleged incident, Student 1’s documentary evidence lacked any specificity, Mr. [XXX][XXX] evidence was unreliable for the reasons set out above, and the Member denied having made the comment or the sexually suggestive gesture that is alleged at paragraph 8(a) of the Notice of Hearing. Principal [XXX] evidence regarding this incident is of limited assistance because he was not present during the incident, he did not investigate Student 1’s concerns until nearly two months after she raised them with him, and there is nothing in the evidence received by the Committee to suggest that Principal [XXX] conducted a fulsome investigation into this matter. The Committee is therefore left with the written statement from Mr. [XXX], dated months after the alleged incident, and the Member’s denial of the incident. Mr. [XXX][XXX] brief written statement, with no other reliable evidence to support his version of events, is insufficient to prove this allegation on a balance of probabilities.

Given these evidentiary deficiencies, the Committee does not find that the Member made the comment or gesture alleged at paragraph 8(a) of the Notice of Hearing.

Particular 8(b): The Member made comments to Student 2 about her weight

The Committee finds that the Member made comments to Student 2 about her weight as alleged at paragraph 8(b) of the Notice of Hearing. The Committee heard evidence from Principal [XXX] and the Member about this allegation, and reviewed a written statement from Student 2.

Evidence in relation to paragraph 8(b) of the Notice of Hearing

Principal [XXX] testified that he received a complaint from Student 2 about the Member in June 2014, in which Student 2 told the principal that she felt uncomfortable because of the Member’s comments to her and his actions. Principal [XXX] recorded notes from his discussion with Student 2 about her concerns on June 17, 2014. The principal’s notes indicate that Student 2 had said that she was cold on the morning of June 17, 2014 in the Member’s classroom, and that the Member responded that she should not be cold with all of her “fat” (see Exhibit 18). Student 2 also provided a written statement on June 17, 2014 in which she indicated that the Member had made her feel very uncomfortable and that “today, he made an insult about me on my weight” (see Exhibit 19).

The Member denied having commented about Student 2’s weight when College Counsel cross-examined him about this issue. According to the Member, another student (and not he) commented that Student 2 “should not be cold with all of her fat”. The Member claimed to have disciplined the student for saying that, although he did not present any other evidence to support this contention. The Member agreed that it was inappropriate to comment about a student’s weight, although he maintained that he did not do so.

Reasons for finding in relation to paragraph 8(b) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member commented to Student 2 about her weight as alleged at paragraph 8(b) of the Notice of Hearing. The Committee recognizes that Principal [XXX] evidence and Student 2’s statement regarding the Member’s comments to her is hearsay, but hearsay evidence is admissible in hearings of the Discipline Committee at the College. Although Student 2 did not testify during this hearing and was not cross-examined by the Member, the Committee finds that her written statement (see Exhibit 19) is sufficiently reliable to give it some weight.

The Committee finds that Student 2’s statement is reliable for the following reasons. In her statement, Student 2 specifically refers to the fact that the Member insulted her about her weight; her statement is signed and dated; and, her statement is contemporaneous (Student 2 wrote that the Member commented about her weight “today” – on the same day that she recorded her written statement). Student 2’s account is also consistent with Principal [XXX] contemporaneous notes from his interview with Student 2 on June 17, 2014 (see Exhibit 18).

Accordingly, the Committee finds Student 2’s version of events to be more plausible than the Member’s explanation that another student made the insulting comment. It is more likely than not that the Member commented about Student 2’s weight as alleged.

Particular 8(c)(i): The Member said to Student 3 words to the effect of “Oh, look at you [Student 3]” and “Check me out”

The Committee finds that the Member made the comments to Student 3 as alleged at paragraph 8(c)(i) of the Notice of Hearing. The Committee received evidence from Student 3 about this allegation and the Member did not produce any evidence to contradict this allegation.

Evidence in relation to paragraph 8(c)(i) of the Notice of Hearing

Student 3 testified about the Member’s inappropriate interactions with her and described the tone that he used with her as “too nice”. During her testimony, Student 3 referred to the written statement that she had provided to Principal [XXX] on the last day of school in June 2014 (see Exhibit 24). According to Student 3, Principal [XXX] had taken her aside to ask how her year had gone since it was her [XXX] at the School. Student 3 told the principal about her issues with the Member and the principal asked her to record her concerns in a written statement. Student 3 testified that Principal [XXX] did not tell her what to write and he did not help her to write her statement.

Student 3 recorded a number of concerns that stemmed from her interactions with the Member. Among others, she indicated that the Member said “Oh, look at you [Student 3]” and that he would “check [her] out” (Exhibit 24). Student 3 testified that she meant that the Member looked at her in a way that made her feel uncomfortable.

Reasons for finding in relation to paragraph 8(c)(i) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member said “Oh, look at you [Student 3]” and checked her out as alleged at paragraph 8(c)(i) of the Notice of Hearing. Student 3’s testimony was credible and it was supported by her written statement (see Exhibit 24). Student 3 testified in a straightforward and honest manner and she did not exaggerate her testimony. She provided thoughtful responses and explanations when questioned during her examination in chief and in cross-examination. Although her written statement is not dated, Student 3 confirmed under oath that she provided it to Principal [XXX] on the last day of school in June 2014. The Committee has no reason to disbelieve Student 3 about this issue. Principal [XXX] also testified that Exhibit 24 was submitted to him at the same time as Exhibit 23, on June 25, 2014.

The Member had the opportunity to cross-examine Student 3 about the allegation set out at paragraph 8(c)(i) of the Notice of Hearing, but he did not ask her about this issue. The Member led no evidence to contradict this allegation.

Accordingly, the Committee finds that it is more likely than not that the Member made the comment as alleged.

Particular 8(c)(ii): Referring to an [XXX] used in class, the Member said to Student 3 words to the effect of “Hey [Student 3], let me see our [XXX]. Hey class, does it look more like her or me?”

The Committee finds that the Member made the comments to Student 3 as alleged at paragraph 8(c)(ii) of the Notice of Hearing. The Committee received evidence from Principal [XXX], Student 3, and the Member about this allegation.

Evidence in relation to paragraph 8(c)(ii) of the Notice of Hearing

Principal [XXX] testified that he received a written statement from Student 3 in which she noted that the Member made a number of inappropriate comments to her, which included the following comment about an [XXX] used in class: “Hey [Student 3] let me see our [XXX]. Hey class, does it look more like her or me?” (Exhibit 24). Principal [XXX] also received a written complaint from another student who had described this incident involving Student 3 (see Exhibit 13). Principal [XXX] testified that this student had brought the complaint forward of her own volition and she explained to the principal that the Member’s comment had made Student 3 feel uncomfortable. Principal [XXX] added that he was not present when this student wrote her statement and he did not tell her what to write.

Student 3 testified that, during a class where the Member was [XXX] for their [XXX] teacher, an incident occurred involving an [XXX]y that was used as a prop in that class. While Student 3 was holding the [XXX], the Member said (in front of the entire class), “Hey [Student 3] let me see our [XXX]. Hey class does it look more like her or me?” (Exhibit 24). Student 3 testified that this comment made her feel so uncomfortable that she left the class, told the principal about the comment, and that Principal [XXX] let her work in the cafeteria instead of returning to class.

The Member had the opportunity to cross-examine Student 3 about this issue, but he did not. He was, however, cross-examined by College Counsel about this allegation. When asked whether he made the “let me see our [XXX]” comment, the Member responded that he did not know but that he did not think he did. He added that he has heard this comment made in other schools as well. College Counsel asked him to clarify whether he was testifying that other teachers had suggested that students’ [XXX] were the [XXX] of a teacher and a student, and the Member responded that he had heard students make this sort of comment.

Reasons for finding in relation to paragraph 8(c)(ii) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member made the comment attributed to him at paragraph 8(c)(ii) of the Notice of Hearing. The Committee accepts Student 3’s testimony about this issue, which was consistent with the written statement of another student (see Exhibit 13). Student 3’s evidence about this issue was credible: it was both internally and externally consistent and it was plausible. Student 3 testified in a forthright manner and her evidence was not exaggerated or contradicted by any other credible evidence.

Although the Member testified that he did not think that he made the comment, his version of events continually evolved as he was cross-examined by College Counsel about this issue. The Member first said that he was not certain but he did not think that he made this comment. Then, he explained that he had heard this type of comment made in other schools. When he was pushed on this issue, his evidence changed yet again and he stated that he had heard other students (and not other teachers) making these sorts of comments at other schools. Although not required to do so, the Member did not lead any evidence that was consistent with his version of events and the Committee finds that his evidence was not credible about this issue.

Particular 8(c)(iii): The Member said to Student 3 words to the effect of “Sure, I’ll take anything from you” when Student 3 offered the Member a muffin

The Committee finds that the Member made the comments to Student 3 as alleged at paragraph 8(c)(iii) of the Notice of Hearing. The Committee received evidence from Student 3 about this allegation. The Member testified that he did not recall making this comment.

Evidence in relation to paragraph 8(c)(iii) of the Notice of Hearing

During her testimony, Student 3 described an incident in which she offered the Member a muffin and he responded, “Sure, I’ll take anything from you” (Exhibit 24). According to Student 3, the Member’s comment sounded flirtatious and made her feel uncomfortable. She testified that she became wary of the Member as she began to notice that he made many of these types of comments.

The Member had the opportunity to cross-examine Student 3 about this issue, but he did not. When College Counsel cross-examined the Member about this allegation, the Member testified that he did not recall taking a muffin from Student 3 and he explained that he did not recall making this comment because it is difficult to remember specifics from three years ago when you have dealt with hundreds of students during your career.

Reasons for finding in relation to paragraph 8(c)(iii) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member made the comment alleged at paragraph 8(c)(iii) of the Notice of Hearing. Student 3’s version of events was more credible than the Member’s about this issue. Student 3 was able to recall the incident and her evidence was uncontradicted. The Member, on the other hand, had no recollection of this event and he did not lead any evidence in support of his denial of this allegation.

The Committee also questions the Member’s explanation that it was difficult for him to recall specifics from three years ago when he has dealt with hundreds of students during his career. When it served to advance his defence, the Member had no difficulty recalling certain events in considerable detail. The Committee is concerned, however, that the Member used his inability to recall this incident as an excuse when College Counsel questioned him about it during cross-examination. Accordingly, the Committee does not find the Member’s explanation with regard to the muffin incident to be credible.

Particular 8(c)(iv): The Member called Student 3 by nicknames without her permission

The Committee finds that the Member called Student 3 by nicknames without her permission as alleged at paragraph 8(c)(iv) of the Notice of Hearing. The Committee received evidence from Student 3 about this allegation. The Member testified that he had no recollection of whether or not he called Student 3 by nicknames.

Evidence in relation to paragraph 8(c)(iv) of the Notice of Hearing

Student 3 testified that the Member referred to her by nicknames whenever he spoke to her. She also referred to this incident in her written statement (see Exhibit 24). According to Student 3, one of the Member’s nicknames for her related to a brand of vodka (although the Member answered, “I don’t know” when College Counsel asked him if he was aware that one of his nicknames for her resembled a type of alcohol). Student 3 felt that it was “weird and unprofessional” for the Member to refer to her by various nicknames.

The Member had the opportunity to cross-examine Student 3 about this issue, but he did not. When College Counsel cross-examined the Member about this issue, he indicated that he had no recollection of whether he called Student 3 by nicknames, but he noted that everyone had nicknames in his community.

Reasons for finding in relation to paragraph 8(c)(iv) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member called Student 3 by nicknames without her permission, as alleged at paragraph 8(c)(iv) of the Notice of Hearing. Student 3’s testimony was credible with respect to this incident. The Member did not present any evidence that contradicted Student 3’s version of events, and his evidence was in fact consistent with her evidence to the extent that he noted that everyone had nicknames in his community. Given that it was typical for community members to have nicknames and that Student 3’s evidence that the Member called her by various nicknames was uncontroverted, the Committee finds that this allegation has been proven on a balance of probabilities.

Particular 8(c)(v): The Member told another student words to the effect of “Tell [Student 3] I’m busy, I can’t hang out tonight

The Committee finds that the Member made the comment alleged at paragraph 8(c)(v) of the Notice of Hearing. The Committee received evidence from Student 3 about this allegation. The Member denied having made this comment.

Evidence in relation to paragraph 8(c)(v) of the Notice of Hearing

During her testimony, Student 3 described an incident in which she and her friends went to the Member’s house to pick up a birthday cake for the Member’s[XXX]. Student 3 was waiting in the car with her friends and her boyfriend at the time, while one of her friends went in to pick up the cake. The Member walked out of his house and yelled towards Student 3’s then boyfriend, “Tell [Student 3] I’m busy. I can’t hang out tonight” (Exhibit 24). While Student 3 testified that the Member meant the comment as a joke, she explained that it made her feel “weird or different” and that it caught her off guard.

The Member had the opportunity to cross-examine Student 3 about this issue, but he did not. When College Counsel cross-examined the Member about this issue, the Member denied having made the comment but he indicated that he remembered the time that a birthday cake was picked up from his house. According to the Member, there was a lot of commotion at the house at the time and he testified that, “I just can’t put that together in terms of me saying it.”

Reasons for finding in relation to paragraph 8(c)(v) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member made the comment alleged at paragraph 8(c)(v) of the Notice of Hearing. Student 3’s testimony was credible about this issue: she was able to recall the incident in considerable detail and her evidence was not exaggerated. In fact, Student 3 acknowledged that the Member meant the comment as a joke, but she explained that it still made her feel uncomfortable and it caught her off guard.

The Member did not present any evidence to contradict Student 3’s version of events, other than to say that there was a lot of commotion at his house at the time of the events. Even if the Committee were to accept the Member’s explanation that there was a lot of commotion, that does not support the Member’s denial of this allegation. It indicates that the Member may not have a clear recollection of the incident because of the commotion at the time, which would diminish his credibility about this particular allegation. Accordingly, the Committee finds that Student 3’s version of events is more likely than not to have occurred.

Particular 9(a): The Member pinched the cheeks of Student 2

The Committee finds that the Member pinched the cheeks of Student 2 as alleged at paragraph 9(a) of the Notice of Hearing. The Committee received evidence from Principal [XXX] (who had discussed the incident with Student 2 and received a written statement from her). The Member also admitted that he pinched Student 2’s cheeks, although he attempted to qualify this admission by explaining that Student 2 was a [XXX] of his and that this was a harmless and spontaneous gesture.

Evidence in relation to paragraph 9(a) of the Notice of Hearing

Principal [XXX] testified that he received a complaint from Student 2 about the Member in June 2014. The principal’s notes dated June 17, 2014 from his interview with Student 2 confirm that Student 2 told Principal [XXX] that the Member pinched her cheeks (see Exhibit 18). Student 2 also provided Principal [XXX] with a signed, written statement dated June 17 in which she reported that the Member pinched her cheeks (see Exhibit 19).

During his testimony, the Member acknowledged that he pinched Student 2’s cheeks, but he qualified this admission by explaining that Student 2 was a [XXX] of his and that he did not intend any harm by this spontaneous gesture. During cross-examination, the Member agreed that it would be inappropriate to pinch the cheeks of a student that was not [XXX] to him. The Member explained that he pinched Student 2’s cheeks to encourage her to work, but he agreed that verbal encouragement would have been a better way to motivate her. When asked whether he thought that his conduct might have embarrassed Student 2 in front of her classmates, the Member responded that it appeared that she was having a good time. Even after College Counsel brought the Member to Exhibits 18 and 19 which indicate that Student 2 felt uncomfortable as a result of the Member’s conduct, the Member held to his position that he did not make Student 2 feel uncomfortable.

Reasons for finding in relation to paragraph 9(a) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member pinched Student 2’s cheeks as alleged at paragraph 9(a) of the Notice of Hearing. The Member admitted this fact, and the Committee received documentary evidence in the form of Principal [XXX] notes from his interview with Student 2 (see Exhibit 18) and Student 2’s written statement in which she indicates that the Member pinched her cheeks (see Exhibit 19).

The Committee rejects the Member’s explanation that this was a harmless gesture and that it was acceptable because Student 2 was a [XXX] of his. Rather, the Committee accepts Student 2’s evidence that the Member made her feel uncomfortable. In fact, Student 2 was uncomfortable enough to report this incident to Principal [XXX]. While Student 2’s evidence is hearsay, the Committee gave it weight because it is logical and reasonable that a student would feel uncomfortable when a teacher pinches their cheeks at school. Regardless of the fact that the Member was a [XXX] of the student’s, at school he was a teacher and he was expected to act professionally with all students. The fact that Student 2 reported this incident to the principal also demonstrates the student’s discomfort. The Member’s credibility was diminished with regard to the question of whether Student 2 felt uncomfortable, when he refused to back down from his position despite being presented with two contemporaneous pieces of documentary evidence that show that Student 2 felt uncomfortable.

Particular 9(b): The College did not establish that the Member placed his hands on the shoulder of Student 4

The Committee finds that there was insufficient evidence to prove that the Member placed his hands on the shoulder of Student 4 as alleged at paragraph 9(b) of the Notice of Hearing. The Committee received evidence from Principal [XXX] (who had received written statements from two students in relation to the Member’s alleged inappropriate physical contact with Student 4). The Member denied this allegation.

Evidence in relation to paragraph 9(b) of the Notice of Hearing

Principal [XXX] received a complaint from Student 4 and from another student who both provided written statements indicating that the Member made inappropriate physical contact with Student 4, which included placing his hand on Student 4’s shoulder (see Exhibits 13 and 23). Neither student testified before the Committee. The principal testified that he was not present when the students wrote their statements and he did not tell them what to write. Student 4’s written statement dated June 25, 2014 indicates that the Member put his hand on her shoulder and that she told him “not to fuckin touch me because I strongly dislike him” (see Exhibit 23). She notes in her statement that this incident occurred three weeks into the second semester of the academic year. The other student’s statement dated April 24, 2014 indicates that the Member leaned against Student 4 and said, “when’s our date” (see Exhibit 13).

The Member denied this allegation and testified that the investigation into this matter was handled incompetently. He noted that Exhibit 23 was dated June 25, 2014, which is seven days after he met with School administration and he was assigned to home with pay pending the completion of the investigation. The Member also testified that Student 4 was “undisciplined, unproductive, spiteful and insolent” (see Exhibit 33).

Reasons for finding in relation to paragraph 9(b) of the Notice of Hearing

The Committee finds that the College has not proven that the Member placed his hand on the shoulder of Student 4 as alleged at paragraph 9(b) of the Notice of Hearing, due to insufficient evidence. It is unclear to the Committee whether Exhibit 13 relates to the incident alleged in paragraph 9(b) and, without having heard from the student who wrote that statement or having been provided with sufficient additional context, the Committee gives little weight to this evidence. The Committee received no evidence from School administration that they even followed up about the incident involving Student 4 that is described in Exhibit 13.

The Committee further recognizes that Exhibit 23 is hearsay, and it gives little weight to this statement for the following reasons. Student 4 clearly indicates in her statement that she “strongly dislikes” the Member and the Committee received evidence from the Member that was consistent with the strained relationship that appears to have existed between Student 4 and the Member. It is possible that Student 4’s feelings towards the Member coloured her perception, which calls into question the reliability of her statement. Without having heard from Student 4 directly and without having had the opportunity to assess her credibility, the student’s brief statement is insufficient to prove the allegation particularized at paragraph 9(b) of the Notice of Hearing.

Moreover, the Committee is concerned with the timeline of the investigation in relation to this alleged incident. Student 4 claimed that the incident occurred three weeks into the second semester of the 2013-2014 academic year, but her statement is dated months later at the end of June 2014. There is no evidence that Principal [XXX] investigated this incident before that time, which the Committee would have expected to be the case if the incident was serious.

Accordingly, the Committee finds that the College has presented insufficient evidence to prove that the Member engaged in inappropriate physical contact with students, which included placing his hand on Student 4’s shoulder, as alleged at paragraph 9(b) of the Notice of Hearing.

Particular 10(a): The Member called Teacher 1 a “sexy blonde”

The Committee finds that the Member called Teacher 1 a “sexy blonde” as alleged at paragraph 10(a) of the Notice of Hearing. The Committee received evidence from Teacher 1, Principal [XXX], and the Member about this allegation.

Evidence in relation to paragraph 10(a) of the Notice of Hearing

Teacher 1 testified that the Member made inappropriate comments to her on several occasions. The first incident that she described occurred when the Member came to her classroom, stood at the doorway and stared at her. A volunteer teacher at the School then asked the Member if he was looking for something, and Teacher 1 overheard the word “sexy” in the Member’s response to the volunteer (although Teacher 1 did not hear his entire comment). Teacher 1 asked the volunteer what the Member had said to her, and the volunteer told her that the Member said he was staring at the “sexy blonde” (referring to Teacher 1 who had blonde hair at the time). Teacher 1 added that students were able to hear the Member’s comment as well, and that two male students told her that they could not believe that the Member would make such a rude comment about her. Teacher 1 reported this incident to School administration and prepared a written statement in June 2014 (see Exhibit 16). While the principal had asked her to prepare a written statement, Teacher 1 testified that Principal [XXX] did not coach her or tell her what to write.

According to Teacher 1, this incident constituted sexual harassment. She testified that the School employees’ code of conduct explicitly provided that this type of unwanted sexual comment and leering were deemed sexual harassment. Teacher 1 added that she felt violated because the Member’s comment was made in front of students, which embarrassed and belittled her. Beyond the sexual connotation of the Member’s comment (which Teacher 1 found to be completely inappropriate in the workplace), she was also concerned that the Member’s comment would negatively affect her relationship with her students, including her Grade [XXX] male students. In particular, Teacher 1 worried that the sexual comment might affect the way that her students looked at her, and might cause them to respect her less.

During his testimony, Principal [XXX] confirmed that he received the written complaint from Teacher 1 in June 2014, in which the teacher informed him that the Member had made her feel uncomfortable (see Exhibit 16).

The Member had the opportunity to cross-examine Teacher 1 about this incident, but he did not. The Member nevertheless denied having made the “sexy blonde” comment.

Reasons for finding in relation to paragraph 10(a) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member made the “sexy blonde” comment as alleged at paragraph 10(a) of the Notice of Hearing. The Committee received uncontradicted evidence from Teacher 1 about this incident and found that her evidence was credible and not exaggerated. Teacher 1 did not overstate her evidence by stating that she heard everything the Member said. Rather, she was clear that she overheard the Member say the word “sexy” to the volunteer at the doorway of her class and she then followed up with the volunteer to find out what the Member had said. Teacher 1’s version of events is plausible and the Member offered no evidence to contradict it, other than his unsupported assertion that he did not make the comment attributed to him.

Particular 10(b): The Member said to Teacher 1 that her cheeks were chubby

The Committee finds that the Member told Teacher 1 that her cheeks were chubby as alleged at paragraph 10(b) of the Notice of Hearing. The Committee received evidence from Teacher 1 about this allegation. The Member denied the allegation.

Evidence in relation to paragraph 10(b) of the Notice of Hearing

Teacher 1 testified that the Member pinched her cheeks and made a comment about her “chubby cheeks” when the two of them were in the School office, which made her feel very uncomfortable. Teacher 1 had made a written statement about this conduct (see Exhibit 16).

According to Teacher 1, the Member appeared to take a comical stance with respect to this incident, but she did not find it funny at all. She sometimes laughed off this type of advance, but she explained that she did this because she is not a confrontational person and she did not want to cause any issues in her workplace. Teacher 1 testified that she was not a member of the [XXX]community and she was concerned about any possible fallout if she were to confront the Member. She was a [XXX] teacher who could not afford to jeopardize her employment. Only when it became blatantly obvious to her that the Member’s intentions were not merely friendly did Teacher 1 report the Member’s conduct.

The Member had the opportunity to cross-examine Teacher 1 with respect to this incident, but he did not do so. The Member denied having told Teacher 1 that her cheeks were chubby, but he offered no evidence in support of his position.

Reasons for finding in relation to paragraph 10(b) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member told Teacher 1 that her cheeks were chubby, as alleged at paragraph 10(b) of the Notice of Hearing. Teacher 1’s evidence is plausible and uncontradicted. The Member provided no evidence in support of his contention that he did not make the comment attributed to him. He also did not cross-examine Teacher 1 about this incident in order to challenge her version of events.

Particular 10(c): The Member talked about grabbing Teacher 2’s cheeks and said words to the effect of “Can I give you a cheeky?”

The Committee finds that the Member talked about grabbing Teacher 2’s cheeks and asked her if she would like a “chucky wucky” (which the Committee finds to be “words to the effect of ‘Can I give you a cheeky?’”) as alleged at paragraph 10(c) of the Notice of Hearing. The Committee received evidence from Teacher 2, Principal [XXX], and the Member about this allegation. The Member admitted that he asked Teacher 2 if she would like a “chucky wucky”.

Evidence in relation to paragraph 10(c) of the Notice of Hearing

Teacher 2 testified that the Member made inappropriate comments to her on several occasions between January and June 2014. In particular, on at least three occasions, the Member asked Teacher 2 if he could give her what she believed he called a “cheeky monkey”. He then motioned with his fingers that he wanted to grab her cheeks. Teacher 2 testified that she responded each time by saying, “No, don’t touch me” and by backing away from the Member. Teacher 2 did not report the first two of these incidents because she thought that the behaviour would stop, but after the third similar incident, she provided Principal [XXX] with a signed, written report describing the Member’s conduct (see Exhibit 15). Teacher 2 testified that Principal [XXX] did not tell her what to write or coach her in any way. In her opinion, the Member’s conduct constituted sexual harassment because the conduct was unwanted, and it made her feel uncomfortable.

Principal [XXX] testified that he spoke to Teacher 2 about this incident on June 11, 2014. His notes from that meeting support Teacher 2’s evidence and indicate that Teacher 2 reported to him that the Member talked about pinching her cheeks, which made her feel uncomfortable (see Exhibit 14).

The Member denied having used the word “cheeky”, but he admitted that he once asked Teacher 2 if she would like a “chucky wucky” in jest. He explained that “chucky wucky” was a term sometimes used to describe the cheeks of [XXX]people. The Member added that he did not intend to touch Teacher 2 and that he was only “jesting” with her. He further explained that he often teased his children in this manner, by occasionally grabbing their cheeks.

Reasons for finding in relation to paragraph 10(c) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member talked about grabbing Teacher 2’s cheeks and asked her if she would like a “chucky wucky”. While the term “chucky wucky” is not the precise terminology alleged in the Notice of Hearing, the Notice of Hearing states that the Member said “words to the effect of ‘Can I give you a cheeky?’” Given the Member’s explanation during his testimony, the Committee believes that “chucky wucky” is sufficiently similar to what is described in the Notice of Hearing as a “cheeky”. The Member admitted that he made this comment to Teacher 2, and the evidence of Teacher 2 and Principal [XXX] is consistent with this admission.

Although there is some disagreement as to whether the Member made this comment once (as he admitted) or at least three times (as Teacher 2 testified), the Committee does not need to resolve this issue. It is clear that the Member made the comment to Teacher 2 at least once and that, although he may not have intended anything inappropriate by the comment, it was unwanted and it made Teacher 2 feel uncomfortable.

Particular 10(d): The Member made comments about Teacher 3’s appearance and/or dress

The Committee finds that the Member made comments about Teacher 3’s appearance or dress (or both) as alleged at paragraph 10(d) of the Notice of Hearing. The Committee received evidence from Principal [XXX], Mr. [XXX], and the Member about this allegation.

Evidence in relation to paragraph 10(d) of the Notice of Hearing

Principal [XXX] testified that he received a complaint regarding the Member in June 2014 from Teacher 3, who claimed that the Member had commented about her appearance and her way of dressing on several occasions, which made her feel very uncomfortable (see Exhibit 17). When the principal investigated the matter, the Member had denied making the alleged comments to Teacher 3, but Principal [XXX] followed up with both Teacher 3 and another teacher at the School (Mr. [XXX]), who both confirmed that the Member made the alleged comments.

Mr. [XXX] also testified about the incident involving the inappropriate comments directed towards Teacher 3. Mr. [XXX] witnessed the incident and testified that it took place outside of his classroom and that Teacher 3 was dressed in a skirt and a belt. According to Mr. [XXX], the Member approached Teacher 3 and commented that she should wear something shorter the next day so that the Member could see more leg. Mr. [XXX] testified that Teacher 3 stormed out of the conversation without responding to the Member, but that it was obvious that she was upset based on her reaction.

Mr. [XXX] further testified that he discussed the incident with Teacher 3 later on and she indicated to him that the Member had made her feel very uncomfortable by making the comment and by gazing at her body. Mr. [XXX] testified that Teacher 3 reported the incident to the School administration. According to Mr. [XXX], he did not say anything to the Member about the incident because it would have been awkward to do so and because this was simply more of the same behaviour from the Member.

The Member denied having made any such comments about Teacher 3’s physical appearance. According to the Member, he did make a sincere comment to Teacher 3 that she was dressed nicely because the School was being evaluated on that particular day. The Member testified that he did not recall what she was wearing or if she was wearing a short skirt as Mr. [XXX] testified. The Member did recall that there was an incident regarding an inappropriate comment made to Teacher 3, but he claimed that the comment was made by another teacher and not by him.

The Member further described a separate incident, in which he said that he had made a trivial joke in an email to Teacher 3. According to the Member, Principal [XXX] told him that his email was inappropriate and the Member told the principal that he would apologize to Teacher 3. The Member claims that Principal [XXX] told him not to worry about it and that he would apologize to Teacher 3 on the Member’s behalf. The Member added that any allegation that he looked Teacher 3 “up and down” is[XXX], which loosely translates as “as if” and means that a situation is impossible, ridiculous, did not happen, is not happening, and could never happen. The Member described many of the allegations in this manner.

During cross-examination, College Counsel questioned the Member with respect to the allegation that he made comments about Teacher 3’s appearance and dress. The Member stated that he did not comment about what Teacher 3 was wearing but that he congratulated her on her attire. College Counsel put it to the Member that there was no difference between “attire” and what someone was wearing. The Member responded that College Counsel could have her opinion about that and he could have his. When asked if he routinely commented about what his colleagues were wearing, the Member responded that the only reason he made a comment about Teacher 3’s attire was because it was a special day for the School, which was being evaluated. College Counsel also took the Member to Teacher 3’s written statement (see Exhibit 17) in which she states that the Member made comments about her appearance and dress and that he had apologized for the most recent incident that took place in April 2014. The Member claimed that she was referring to a different incident (than the one that is alleged and that Mr. [XXX] testified about), despite what Teacher 3 recorded in her written statement.

Reasons for finding in relation to paragraph 10(d) of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member commented about Teacher 3’s appearance or dress as alleged at paragraph 10(d) of the Notice of Hearing. The Committee finds that Mr. [XXX] evidence was more credible than the Member’s evidence in relation to this allegation. Mr. [XXX]had a detailed recollection of the incident in question and his evidence was consistent with Teacher 3’s written statement dated June 18, 2014. Mr. [XXXexplanations were reasonable and plausible.

The Member’s evidence in relation to this allegation, on the other hand, was inconsistent and the Committee finds that he was therefore not credible with regard to this allegation. His testimony continually evolved as he was questioned about this matter. The Member initially denied having made comments about Teacher 3’s physical appearance. He then changed his position by explaining that he had made a sincere comment to Teacher 3 to congratulate her for dressing nicely for the School’s evaluation. Then, the Member provided the explanation that there was a separate incident in which he had sent Teacher 3 an inappropriate email and that he had told Principal [XXX] that he would apologize for this (but never did because he claimed that the principal was going to apologize to Teacher 3 on his behalf).

The Committee is concerned that the Member’s position changed significantly during his testimony, and the Committee notes that the Member’s version of events is inconsistent with the evidence of Mr. [XXX] and Principal [XXX], as well as Teacher 3’s written statement. Parts of the Member’s testimony are also implausible. For instance, the Committee does not believe that the principal would have offered to apologize on behalf the Member after the Member sent an inappropriate email to Teacher 3.

Accordingly, the Committee finds that the Member commented inappropriately about Teacher 3’s appearance or dress.

Particular 11: The Member grabbed and/or touched Teacher 1’s arm and/or cheeks

The Committee finds that the Member grabbed or touched Teacher 1’s arm or cheeks (or both) as alleged at paragraph 11 of the Notice of Hearing. The Committee received evidence from Teacher 1 and Principal [XXX] about this allegation. The Member denied this allegation.

Evidence in relation to paragraph 11 of the Notice of Hearing

Teacher 1 testified that the Member made unwanted physical contact with her on a couple of occasions. Once, while Teacher 1 was in the office photocopying class materials, the Member grabbed her arm when she was trying to leave the photocopy area. Another time in the office, the Member pinched Teacher 1’s cheeks and made a comment about her “chubby cheeks”. These incidents made Teacher 1 feel very uncomfortable. She testified that there was no reason for her colleague to touch or grab her. Teacher 1 added that the Member appeared to take a “comical stance” with respect to these incidents, but that she did not find them funny at all.

In Teacher 1’s written statement, which was received by the [XXX] on June 18, 2014, she writes:

This is not the first time that Mr. Odjig has been inappropriate and made me feel uncomfortable. He has grabbed my arm in the office before when I was trying to leave the photocopying area, and yesterday he grabbed my cheeks and told me they were ‘chubby’ (see Exhibit 16).

Principal [XXX] testimony was also consistent with Teacher 1’s account. The principal testified that he received a complaint from Teacher 1 who told him that the Member grabbed her cheeks and her arm on separate occasions, which made her feel very uncomfortable.

The Member had the opportunity to cross-examine Teacher 1 about these incidents, but he did not do so. Although he denied grabbing or touching Teacher 1’s arm or cheeks, the Member did not provide any other evidence to support his position. During cross-examination, when College Counsel asked the Member if this was yet another example of someone being mistaken about what the Member had or had not done, the Member responded, “you can call it what you want.”

Reasons for finding in relation to paragraph 11 of the Notice of Hearing

The Committee finds, on a balance of probabilities, that the Member grabbed or touched Teacher 1’s arm or cheeks (or both) as alleged at paragraph 11 of the Notice of Hearing. Teacher 1’s evidence was consistent with Principal [XXX] account. While the Member had the opportunity to challenge Teacher 1’s evidence, he did not do so and he did not provide any evidence to contradict her account (other than to state that he denied the allegation). The Committee therefore finds that the College has advanced sufficient evidence to prove this allegation.

Legal conclusions

Factual findings that do not amount to professional misconduct

The Committee made several factual findings that do not rise to the level of professional misconduct. Specifically, the Committee found that the allegations particularized at paragraphs 8(c)(i), 8(c)(iii), 8(c)(iv), 10(b) and 10(c) of the Notice of Hearing were proven to have occurred on a balance of probabilities, but did not amount to professional misconduct for the following reasons.

With respect to particular 8(c)(i), the Committee did not receive sufficient evidence about the circumstances surrounding the “Oh, look at you [Student 3]” and “Check me out” comments to conclude that they amount to professional misconduct. Student 3 did not report this incident at the time that it occurred because, by her own admission, she did not think that it was much of a problem at the time. Based on the evidence before the Committee, this comment is not serious enough to give rise to a finding of professional misconduct.

With respect to particular 8(c)(iii), while the Committee finds that the Member likely said “sure I’ll take anything from you” in response to Student 3 offering him a muffin, the Committee does not find that his comment amounts to professional misconduct. The Committee received insufficient evidence of the circumstances surrounding this comment to conclude that it was indeed flirtatious or inappropriate (as Student 3 interpreted it). On its face, the comment is not concerning enough to give rise to a finding of professional misconduct.

With respect to particular 8(c)(iv), the Committee does not find that calling Student 3 by nicknames amounts to professional misconduct. The nicknames do not appear to be demeaning or intentionally inappropriate and it was common in the Member’s community to refer to people by nicknames. Student 3 never told the Member that the nicknames made her uncomfortable, and given the circumstances, the Committee does not find that the use of nicknames in this case amounts to professional misconduct.

With respect to particular 10(b), the Committee does not find that making a comment about Teacher 1’s “chubby cheeks” amounts to professional misconduct. While the comment was insensitive and the Committee believes that the Member ought to be more careful when addressing his colleagues, there does not appear to be any malice behind the comment. The Member should not have said what he did, but this particular comment was not serious enough to give rise to a finding of professional misconduct.

With respect to particular 10(c), the Committee does not find that the “chucky wucky” comment gives rise to a finding of professional misconduct. The Committee did not receive evidence that the Member in fact gave Teacher 2 a “chucky wucky”; he simply asked if she would like one (“in jest” according to him). While the Member ought to be aware that the type of teasing in which he might engage at home with his children is not appropriate in a professional setting, asking a colleague if she would like a “chucky wucky” is too trivial a comment to amount to professional misconduct. The Committee advises the Member to take greater care in his professional communication in the future, but it believes that this comment could have been addressed without requiring the intervention and resources of the College’s Discipline Committee.

Factual findings that amount to professional misconduct

Based on its factual findings other than those set out immediately above (which were not serious enough to amount to professional misconduct), the Committee finds that the Member’s conduct gives rise to 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(7.2), 1(18) and 1(19). The Committee does not find that the Member breached subsections 1(7), 1(7.1), 1(7.3) or 1(15) of Ontario Regulation 437/97.

1(5): The Member failed to maintain the standards of the profession

The Committee finds that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. The Committee was presented with the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (see Exhibit 28) and it received Principal [XXX] opinion that the Member failed to maintain the standards of the profession. Principal [XXX] was qualified as a participant expert on the issue of appropriate boundaries between teachers and students and between teachers and their colleagues.

The Ethical Standards of the Teaching Profession provide that members are expected to conduct themselves with respect. Members of the profession are expected to “honour human dignity, emotional wellness and cognitive development” (see Exhibit 28).

The Standards of Practice for the Teaching Profession provide that members are expected to demonstrate a commitment to students and student learning, and they are expected to demonstrate leadership in learning communities. To meet these expectations, members are expected to “treat students equitably and with respect and [to be] sensitive to factors that influence individual student learning” (see Exhibit 28). They are also expected to “promote and participate in the creation of collaborative, safe and supportive learning communities” (see Exhibit 28).

The Member failed to maintain the standards of the profession set out above. He behaved disrespectfully and he did not foster a safe and supportive learning environment. The particulars proven at paragraphs 8(b), 8(c)(ii), 8(c)(v), 9(a), 10(a), 10(d) and 11 of the Notice of Hearing substantiate the finding that the Member failed to maintain the standards of the profession.

The Member made comments to Student 2 about her weight, telling her that she should not be cold with all of her fat. This disrespectful comment is a breach of the standards of the profession. Students often contend with body image issues and it is unacceptable for a member of the profession to comment to a student about their weight. High school can be a challenging enough experience without receiving disrespectful comments from a teacher. By making a rude comment to Student 2 about her weight, the Member did not treat Student 2 with respect and he was not sensitive to factors that influence student learning, which demonstrates that the Member fell short of meeting the standard referred to as “Commitment to Students and Student Learning” set out in the Standards of Practice for the Teaching Profession.

The Member also pinched Student 2’s cheeks. Regardless of the fact that Student 2 was a [XXX] of the Member’s, the Member was expected to maintain appropriate professional boundaries in his role as a teacher. It is unacceptable to pinch a student’s cheeks. Although the Member may not have intended any harm by this conduct, and testified that he was trying to encourage Student 2 to work, he singled her out and made her feel uncomfortable. This conduct once again demonstrated a lack of sensitivity to factors that influence individual student learning, which is a breach of the standard referred to as “Commitment to Students and Student Learning” set out in the Standards of Practice for the Teaching Profession. Pinching a student’s cheeks is not conducive to creating a safe and supportive learning environment.

The Member made an inappropriate comment to Student 3 about an [XXX], in which he asked the class if the [XXX] looked more like Student 3 or like him. This comment embarrassed Student 3 in front of her peers. While the Member may not have intended to embarrass the student and may have thought that he was making the comment “in jest”, the comment was not amusing to Student 3 and it is unacceptable to publicly embarrass a student. Similarly, the Member told Student 3’s boyfriend at the time to tell Student 3 that “I’m busy [and] I can’t hang out tonight.” Again, this comment was embarrassing to Student 3, even if the Member intended it as a harmless comment made “in jest”. The Member failed to provide Student 3 with a safe and supportive learning environment by making these comments as required by the College’s Standards of Practice for the Teaching Profession, and he failed to maintain appropriate professional boundaries.

The Member’s conduct towards his colleagues also demonstrated his failure to maintain the standards of the profession. The Member grabbed or touched Teacher 1’s arms or cheeks, he referred to Teacher 1 as a “sexy blonde” in front of a school volunteer and Teacher 1’s students, and he made an inappropriate comment about Teacher 3’s appearance or dress in front of other teachers. These comments were demeaning and embarrassing. Teacher 1 testified that she was concerned that the “sexy blonde” comment might have compromised her relationship with her students, including her 7 [XXX] male students. In particular, Teacher 1 worried that the sexual comment might affect the way that her students looked at her, and might cause them to respect her less. In this instance, the Member did not behave as a positive role model to students. He set the example that it is acceptable to objectify women by making disrespectful comments about them. It is not.

These types of unwanted remarks or sexually suggestive comments constitute sexual harassment, as defined in the Board’s sexual harassment policy (see Exhibit 27). They detract from a safe and supportive learning environment and they are unprofessional. School administration had previously warned the Member in writing about sexual harassment on December 18, 2012, and the Member received a one-day suspension without pay for his inappropriate conduct. The Committee is concerned that the Member did not heed this serious warning and instead continued to make similarly inappropriate comments during the 2013-2014 academic year. The Committee received evidence that students and colleagues of the Member actively tried to avoid him. Nobody in a school community should be made to feel so uncomfortable around a teacher that they feel the need to avoid any contact with them.

Accordingly, the Committee finds that the Member failed to maintain the standards of the profession through his inappropriate comments and conduct set out above.

1(7): The College did not establish that the Member abused a student or students verbally

While the Member made some inappropriate comments to students that breached the standards of the profession, as set out above, the Committee does not find that these comments amount to verbal abuse. The Committee believes that the Member may have thought that he was making his comments “in jest”. The Committee also received evidence that others realized that the Member was joking, but that his comments were nevertheless inappropriate and made them feel uncomfortable. The Committee does not condone the Member’s comments and finds that the Member demonstrated poor professional judgment and a serious lack of awareness about the way that his actions affected others. However, the Committee received no evidence that the Member’s comments were made in an aggressive tone or that he intended to demean students. Some of the Member’s comments were unprofessional or insensitive, but they did not rise to the level of verbal abuse.

1(7.1): The College did not establish that the Member abused a student or students physically

The Committee does not find that the Member physically abused a student or students. The only physical conduct that the Member made with a student was to pinch the cheeks of Student 2. While this conduct was inappropriate and amounted to a breach of standards, as set out above, it does not rise to the level of physical abuse. Student 2 did not testify and the Committee did not receive sufficient evidence regarding the circumstances surrounding the cheek-pinching incident to prove that it was serious enough to constitute physical abuse. Allegations of physical abuse are very serious and given the consequences of a finding of physical abuse, the Committee must ensure that the evidence is of a sufficient quality and quantity to justify such a finding. The College’s evidence of physical abuse was insufficient in this case.

1(7.2): The Member abused students psychologically or emotionally

The Committee finds that the Member psychologically or emotionally abused students and that his conduct was therefore in breach of subsection 1(7.2) of Ontario Regulation 437/97. As set out above, the Member made an inappropriate comment to Student 2 about her weight and he embarrassed Student 3 in class by asking the class if an [XXX] used for a class exercise looked more like him or like Student 3.

Both of these incidents constitute psychological or emotional abuse. The Committee received evidence that the students felt uncomfortable because of the Member’s comments. Members of the teaching profession are expected to provide a safe and supportive learning environment for students and the Member’s comment had the opposite effect. He embarrassed students and made them feel self-conscious. Regardless of the Member’s intentions, his comments had a negative effect on these two students and they were psychologically or emotionally abusive. It is inappropriate for a teacher to call a student fat and it is similarly inappropriate for a teacher to joke about having a [XXX] with a student. Members of the profession must maintain appropriate professional boundaries with students at all times and support their growth and development. Making embarrassing or demeaning remarks to students is unacceptable.

1(7.3): The College did not establish that the Member sexually abused a student or students

The Committee finds that the College has not provided sufficient evidence to prove that the Member sexually abused a student or students. None of the Member’s comments or gestures towards students were sexual in nature. The [XXX] comment may have been perceived to have some sexual undertones, but given the limited evidence before the Committee, it is not clear that this comment (inappropriate though it may be) was sexual in nature.

While the Member did make inappropriate sexual remarks to Teacher 1 and Teacher 3, which would be considered sexual harassment under the Board’s sexual harassment policy, a breach of subsection 1(7.3) of Ontario Regulation 437/97 is limited to the sexual abuse of students (and not colleagues). Therefore, the Committee makes no finding of professional misconduct with respect to this allegation.

1(15): The College did not establish that the Member failed to comply with subsection 264(1) of the Education Act

The Committee finds that the College has not proven that the Member failed to comply with the Education Act, and it therefore makes no finding of professional misconduct with respect to this allegation. The Committee received insufficient guidance from the College with respect to this allegation. While the Notice of Hearing refers to subsection 264(1) of the Education Act, the College did not take the Committee to this provision or explain how the Member’s conduct was in breach of this provision. The College’s position with respect to this allegation was not sufficiently clear or specific. The Committee therefore does not find that the College established that the Member failed to comply with subsection 264(1) of the Education Act.

1(18): The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional

The Committee finds that the Member contravened subsection 1(18) of Ontario Regulation 437/97. Through his inappropriate comments and conduct, the Member made both students and colleagues feel uncomfortable. The Member failed to maintain appropriate professional boundaries on several occasions. He made comments to Student 3 insinuating that they had a [XXX] together, he remarked that he was unable to hang out with Student 3 one evening, he pinched the cheeks of Student 2, he referred to Teacher 1 as a “sexy blonde”, he made an inappropriate comment about Teacher 3’s attire (suggesting that she wear a shorter skirt so that he could see more of her legs), and he grabbed or touched Teacher 1’s arm or cheeks. The Member also told a student that she was fat.

These comments formed part of a concerning pattern of behaviour. Although some of the comments, when viewed in isolation, may be at the lower end of the spectrum of professional misconduct, the Member’s behaviour is certainly troubling when viewed in its entirety. He had received warnings and discipline from School administration about his conduct in the past, and yet, he continued to make inappropriate and demeaning comments to students and colleagues. The Member’s behaviour made those around him feel uncomfortable, and some of his colleagues went out of their way to avoid him. Although the Committee does not believe that the Member intended to make those around him feel uncomfortable, his conduct was nevertheless unprofessional.

Members of the profession are expected to demonstrate a level of professionalism with their colleagues and their students. While the Member testified that he comes from a fun-loving community in which it is customary to “jest” with one another, the Member failed to appreciate that jokes at the expense of others are inappropriate. There is a significant difference between teasing (when both parties participate in a light-hearted joke) and harassing (when one party makes unwelcome remarks at another’s expense). The Member crossed this line and seemed to be unaware that he was even doing anything wrong.

Members of the teaching profession ought to be aware of appropriate professional boundaries, and they should not engage in conduct or make comments that cause those around them feel uncomfortable (particularly after they have been formally advised about the inappropriate nature of their behaviour). As an experienced educator, the Member should have known the difference between joking and harassment, and the Committee is concerned that he did not. It is not the responsibility of the recipient of unwanted remarks or behaviour to tell someone to stop. Members of the profession are expected to have the self-awareness necessary to conduct themselves appropriately in a professional and supportive learning environment.

Due to his lack of professionalism, his demeaning and embarrassing comments towards students, and his sexual harassment of colleagues, the Committee finds that the Member breached subsection 1(18) of Ontario Regulation 437/97. The Member was expected to be a positive role model for students at his school, and instead he modeled inappropriate behaviour that made others feel uncomfortable.

1(19): The Member engaged in conduct unbecoming a member

The Committee found, among other things, that the Member made disrespectful comments to a student about her weight, he failed to maintain appropriate boundaries with students, he made students feel uncomfortable through his inappropriate comments, he pinched a student’s cheeks, and he sexually harassed colleagues. Through his conduct, the Member tarnished the reputation of the teaching profession and undermined the trust and confidence that the public places in teachers. The Committee therefore finds that the Member’s conduct was unbecoming a member of the profession.

Conclusion

For the reasons set out in detail above, the Committee finds that the Member is guilty of professional misconduct. He contravened subsections 1(5), 1(7.2), 1(18) and 1(19) of Ontario Regulation 437/97.

The Committee does not believe that there was any malice behind the Member’s actions or that he was behaving in a mean-spirited manner. Rather, the Committee finds that the Member had a concerning lack of understanding or awareness about the impact that his conduct had on those around him. The Committee believes that the Member thought that he was “jesting” with colleagues and students, but the Member nevertheless crossed the line on several occasions and he made several members of his school community feel uncomfortable. While he may not have had bad intentions, he demonstrated very poor professional judgment. The warnings that he received from the Board and the reactions of those around him should have informed his behaviour, but they did not. As a result, the Member failed to promote a safe and supportive learning environment for his students and he conducted himself in an unprofessional manner.

The Committee has not lost sight of the fact that the Member is part of a [XXX]community with unique cultural norms and values. The Committee appreciates that the Member described his community as a jovial community that values humour and laughter. That said, “jesting” can sometimes go too far, as it has in this case, and people can be made to feel uncomfortable despite one’s intentions. To accept the Member’s defence that the allegations were [XXX] (i.e. impossible, ridiculous, did not happen, is not happening, and could never happen) would be to ignore the negative impact that the Member has had on several of his students and colleagues. The Committee cannot ignore the evidence of those who were affected by the Member’s conduct.

The Committee hopes that the Member learns from this experience, that he takes greater care in any future interactions with students or colleagues, and that he seizes this opportunity to make a fresh start by beginning to rebuild his reputation within the community, which the Committee understands is very important to him.

PENALTY

The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.

Date: November 14, 2017

Vicki Shannon, OCT Chair, Discipline Panel

Robert Gagné Member, Discipline Panel

Shanlee Linton, 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. 2The Member replied to this submission and clarified that he was not suggesting that College Counsel had persuaded witnesses to fabricate their evidence, but that there was no way for him to know what information was shared between witnesses once one left the hearing and another witness came in to testify. The Member ultimately withdrew any suggestion of this nature.