Ontario College of Teachers v. Fisher, 2018 ONOCT 11

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Fisher 2018 ONOCT 11

Date: 2018-01-31

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

Beverley Albert Fisher, a member of the Ontario College of Teachers at all material times.

PANEL: Vicki Shannon, OCT, Chair

Sara Nouini, OCT

Tom Potter

BETWEEN: ) Christine Wadsworth,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Amy Leung,

) Law Clerk

– and – )

BEVERLEY ALBERT FISHER ) Bianca Bell,

(CERTIFICATE #467999) ) Ursel Phillips Fellows Hopkinson LLP, ) for Beverley Albert Fisher

) Robin K. McKechney,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: December 5, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 5, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A first Notice of Hearing dated October 28, 2013 (Exhibit 1) was served on Beverley Albert Fisher (the “Member”), requesting his presence on November 18, 2013 to set a date for hearing, and specifying the charges. A second Notice of Hearing dated September 30, 2015 (Exhibit 2) was served on the Member, requesting his presence on October 7, 2015 to set a date for hearing, and specifying the charges. The hearing with respect to the allegations set out in Exhibit 1 and Exhibit 2 was held on December 5, 2017. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing.

The Member was not in attendance for the hearing but had legal representation.

THE ALLEGATIONS

The allegations against the Member in the first Notice of Hearing (dated October 28, 2013) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)¹ of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

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

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;²

(d) 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

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

The allegations against the Member in the second Notice of Hearing (dated September 30, 2015) are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)³ 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);⁴

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

(d) 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;⁵

(e) 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);⁶

(f) 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

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

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. At all material times, Beverley Albert Fisher was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed by the Bluewater District School Board (the “Board”) as a teacher of various t[XXX] classes at [XXX]School (the “School”) in[XXX], Ontario.

2010-2011 and 2011-2012

3. Student 1 was a female student at the School in Grade [XXX] during the 2010-2011 school year and in Grade [XXX] during the 2011-2012 school year. Student 1 respected the Member and confided in him, and would hang around his classroom whenever she could during those years.

4. At the end of the 2010-2011 school year, when Student 1 went to say goodbye to the Member, he commented on how nice she smelled and said words to the effect of, “you better leave.” His comments made her feel uncomfortable.

5. After Christmas 2011, Student 1 and the Member began texting each other. Their texts contained “friendly talk” only. However, the Member acknowledges that texting with students crossed appropriate student-teacher boundaries.

6. On or about January 17, 2012, Student 1 dropped by the Member’s classroom after school to say hello. She accompanied the Member to the [XXX]classroom because he needed to [XXX]in preparation for his classes the following day. There was no one else in the [XXX] classroom at the time. As the Member was[XXX], Student 1 believed he said words to the effect of finding it hard to concentrate because of her “ass”.

7. Student 1 accompanied the Member into another classroom to deposit the[XXX]. The lights were off in the classroom and, unbeknownst to the Member, Student 1 was frightened of the dark. She grew increasingly uncomfortable being alone with the Member in the darkened classroom. At one point, she perceived the Member coming towards her and she backed away from him. The Member did not touch Student 1. He realized she was uncomfortable alone in the classroom with him, apologized to her, and drove her home.

8. On or about January 18, 2012, the Member was sent home with pay pending investigation. During the investigation, Students 2, 3 and 4 reported to the administration that the Member had made inappropriate comments that made them feel uncomfortable.

9. Student 2 was a female student who had been in the Member’s class during the 2010-2011 school year. One day in class, she pointed out to the Member that there was sticky residue on her desk. The Member did not intervene when another student referred to it as “jizz”, which made Student 2 feel uncomfortable.

10. When Student 3 asked the Member whether she could go to the washroom, the Member replied with words to the effect of, “only if he could come and watch.” Student 3 felt awkward and uncomfortable, and found the Member’s comment “weird”.

11. If the Member were to testify, he would say that the comment referred to in paragraph 10 was meant as a humorous correction to the student’s phrasing. When students asked him whether they “can” go to the bathroom instead of whether they “may” go to the bathroom, he would reply, in jest, by asking the student whether they wanted someone to accompany them in order “to watch and let you know if you can.” The Member acknowledges that his comment was inappropriate and could be misconstrued.

12. One day in November 2011, the Member wore a false mustache to class for “Movember”. He approached Student 4, a female student, and asked her whether she had ever kissed someone with a moustache. Student 4 was surprised at the Member’s question and thought it “weird”.

13. Police conducted an investigation and concluded there was not enough evidence to lay charges. Police advised the Board that, in their opinion, “information had been obtained that would support the existence of inappropriate language and conduct by [the Member].” Attached hereto and marked as Exhibit “B” is a copy of the police correspondence to the Board dated March 6, 2012.

14. Board administrators met with the Member and his representative on February 29, 2012, at which time the Member acknowledged “texting on an ongoing basis with one student” and “making comments that could be misperceived and would therefore appear to be unprofessional.” The Board concluded the Member had “not developed clear professional boundaries with [his] students” and imposed restrictions on the Member’s duties including: no communication with or contacting Student 1, no repercussions or reprisals for anyone, not to be alone with any students in his classroom before or after school hours, and having a second adult present when acting as a staff advisor or coach until the end of the school year. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter to the Member dated March 7, 2012.

2014-2015

15. During the fall of 2014, the Member engaged in inappropriate comments and conduct during class which made some of the female students, who were [XXX] and [XXX] years old, feel nervous and uncomfortable around the Member, including:

(a) asking a student to tell her friend he missed her being in class, when she was absent;

(b) telling a female student she was a “pretty girl” when the student was looking at a photograph of herself;

(c) telling a female student he will try not to touch her, when standing behind her and touching the back of her chair;

(d) telling two female students who were impatient while waiting for the Member, whose hands were covered in flour, to open a locked door, that they could reach into his pockets to get the keys;

(e) telling female students “you look good today”;

(f) sitting too close to female students and/or in their physical space.

16. If the Member were to testify, he would explain that by comment (a), he only intended to point out that the other student was absent, and was not aware the student interpreted his comment differently. The Member would testify he made comment (b) in response to the student making self-deprecating comments about her picture, and had intended to be encouraging. The Member would testify that he made comment (d) in an exasperated tone, and meant it sarcastically and did not mean to invite the students to reach into his pockets. With respect to comment (e), the Member would testify he would say such comments in an encouraging manner and did not intend them to have any sexual meaning.

17. On or about November 7, 2014, the Member was advised that there were allegations “similar to before” -- inappropriate comments with sexual innuendo -- and he was sent home with pay pending investigation.

18. By letter dated December 17, 2014, the Board advised the Member that it had completed its investigation and confirmed the allegations. The Board advised the Member his employment was being terminated with cause, effective December 31, 2014, for the following reasons: “Your actions undermine the confidence the Board has in you as a teacher to act as a role model for students and to use good judgment in the management of your class and to treat students with dignity and respect. In totality, your behaviour undermines your ability to fulfill your duties as a teacher and has destroyed the trust necessary for an ongoing and viable employment relationship.” Attached hereto and marked as Exhibit “D” is a copy of the Board’s letter to the Member dated December 17, 2014.

GUILTY PLEA

19. By this document⁷, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

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

21. By this document the Member states that:

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

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

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

(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

22. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

The parties requested that the Committee combine both Notices of Hearing so that this matter could proceed in a single hearing. The Committee granted this request.

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the first Notice of Hearing (dated October 28, 2013), namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97, be withdrawn. Counsel for the College similarly requested that the allegations of professional misconduct outlined in paragraphs (b), (d) and (e) of the second Notice of Hearing (dated September 30, 2015), namely that the Member contravened subsections 1(7), 1(7.3) and 1(15) of Ontario Regulation 437/97, be withdrawn. The Committee granted these requests, after receiving additional submissions from the parties addressing its concerns.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(18) and 1(19).

REASONS FOR DECISION

As noted above, counsel for the College requested that the allegations that the Member contravened subsections 1(7), 1(7.3) and 1(15) of Ontario Regulation 437/97 (as set out in the two Notices of Hearing), be withdrawn. At the initial presentation of the request, no reasons were given to the Committee to support the request for the above withdrawals. The Committee subsequently asked the parties to explain the rationale for the withdrawal requests. The Committee was particularly concerned with the requested withdrawal of the sexual abuse allegation, and informed the parties that it was considering rejecting the Agreed Statement of Facts and Guilty Plea and denying the College’s motion to withdraw the sexual abuse allegation. The Committee invited the parties to address its concerns regarding the sexual abuse allegation.

College Counsel reviewed the relevant Admitted Facts in detail and explained why they should not give rise to a finding of sexual abuse, particularly given the Member’s justifications set out in the Agreed Statement of Facts. Counsel for the College submitted that the Member’s comments could be characterized in multiple ways, including that they were “weird” and “inappropriate”, but that there was no evidence before the Committee that the Member’s conduct constitutes sexual abuse. Further, the Committee was advised by College Counsel that the agreement reached was the product of a thorough review of all of the evidence and extensive negotiations between the parties and their experienced legal teams. Member’s Counsel agreed with College Counsel’s submissions.

The Committee recognizes that the legal test for rejecting a joint submission is stringent: a Committee should not depart from a joint submission unless the proposed agreement would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee accepts the parties’ submissions that this high threshold has not been met in this case.

After careful consideration of the Agreed Statement of Facts and Guilty Plea and the additional submissions of the parties, the Committee found that the Member’s comments were completely inappropriate, but it accepted the parties’ submissions that there was insufficient evidence to reach a finding that the comments constitute sexual abuse. The Committee further accepted that there was no reasonable prospect of obtaining a finding of professional misconduct with respect to the sexual abuse allegation, if the Committee were to reject the College’s motion to withdraw that allegation and the matter were to proceed on a contested basis. Accordingly, the Committee does not believe that the legal test for rejecting a joint submission has been met in this case, and it flows from that decision that the Committee granted the College’s motion to withdraw the allegation of sexual abuse (as well as the other two allegations set out above).

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

Paragraphs 4-15 and 18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 4-15 and 18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 4-15 and 18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4-15 and 18 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

RESIGNATION, UNDERTAKING AND ACKNOWLEDGMENT

College Counsel advised the Committee that the Member agreed to the following terms and conditions, as set out in the Resignation, Undertaking and Acknowledgment of Beverley Albert Fisher (the “Undertaking and Acknowledgment”) (Exhibit 5):

1. I hereby resign as a member of the Ontario College of Teachers with immediate effect.

2. I undertake that following my resignation, I will not teach in any public or private school in Ontario or work in any position which requires membership in the Ontario College of Teachers.

3. I undertake that if, in the future, I seek to apply for a Certificate of Qualification and Registration, or to apply for reinstatement of my Certificate of Qualification and Registration, I will first successfully complete a course on boundaries and boundary violations with students, which has been pre-approved by the Registrar, and will provide proof of successful completion of same to the Registrar, before submitting my application to be considered by the College.

4. I acknowledge that my status on the Public Register of the Ontario College of Teachers will be “Resigned-Cancelled”, with a notation referring to the fact that I have undertaken to successfully complete coursework on boundaries and boundary violations prior to seeking reinstatement of or applying for a Certificate of Qualification of Registration:

“On December 5, 2017, before the Discipline Committee at the College, the Member resigned his membership with the Ontario College of Teachers and signed an undertaking not to reapply without having successfully completed coursework pre-approved by the Registrar.”

5. I acknowledge my understanding about the scope, purpose and effect of my execution of this Undertaking and Acknowledgment and am executing same voluntarily, unequivocally, and with the advice of legal counsel.

JOINT SUBMISSION ON PENALTY

In addition to the Member’s Undertaking and Acknowledgment, the parties provided the Committee with a Joint Submission on Penalty (Exhibit 4), indicating that the appropriate penalty to be imposed in this matter would be that the Committee:

1. direct that the Member appear before the Committee within 120 days of the date of this Order, on a date to be arranged by the Member, to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

PENALTY DECISION

Given the terms and conditions set out in the Member’s Undertaking and Acknowledgment, the Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case, including the fact that the Member entered into the Undertaking and Acknowledgment set out above. The penalty proposed by the parties is also within a reasonable range, based on analogous cases presented by College Counsel, including: Ontario College of Teachers v. Jaarsma, 2017 ONOCT 71 and Ontario College of Teachers v. Morris, 2006 ONOCT 33.

The Committee finds that the terms and conditions set out in the Member’s Undertaking and Acknowledgment, together with the parties’ Joint Submission on Penalty strike an appropriate balance in this case and will protect the public interest. Among other things, the Member has undertaken to resign immediately, to not teach in any public or private school in Ontario, and to complete a course on boundaries or boundary violations if he ever seeks to return to the teaching profession in Ontario. He has also been ordered to receive a reprimand from the Committee. The Committee is therefore satisfied that the public will be adequately protected. The Member will not be permitted to teach in Ontario unless he successfully applies for reinstatement of his Certificate of Qualification and Registration, following the successful completion of remedial coursework that will address his failure to maintain appropriate professional boundaries.

The Committee finds that it is appropriate to order a reprimand, in addition to the terms and conditions set out in the Member’s Undertaking and Acknowledgment. The Member engaged in a concerning pattern of inappropriate behaviour. Over the course of several academic years, he repeatedly made inappropriate comments to students, which made them feel uncomfortable. The Member’s inappropriate conduct led to interventions by his Board on two separate occasions. Despite restrictions and boundaries that were imposed upon the Member by his Board in 2012, the Member continued to engage in similar misconduct which resulted in the termination of his employment in 2014. The Committee therefore finds that a reprimand is appropriate, as it will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Receiving the reprimand from a group of his peers is intended to make the Member aware of how grievous his behaviour was, and the impact of his misconduct on his students. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession, by informing them that the College does not tolerate this type of misconduct.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: January 31, 2018

Vicki Shannon, OCT

Chair, Discipline Panel

______________________________ Sara Nouini, OCT

Member, Discipline Panel

Tom Potter

Member, Discipline Panel

Footnotes

1. 1Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
2. 2Allegation withdrawn.
3. 3Section 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.
4. 4Allegation withdrawn.
5. 5Allegation withdrawn.
6. 6Allegation withdrawn.
7. 7For the purposes of paragraphs 19 and 21, this “document” refers to the Agreed Statement of Facts and Guilty Plea.