DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Tom William Maloney, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Sara Nouini, OCT
Wes Vickers, OCT
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
TOM WILLIAM MALONEY ) Melanie Reist,
(CERTIFICATE #179192) ) Morrison Reist, ) for Tom William Maloney
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: January 17, 2018
DECISION AND REASONS FOR DECISION ON MOTION
This matter came on for hearing and a motion to withdraw an allegation before a panel of the Discipline Committee (the “Committee”) on January 17, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated June 28, 2016 (Exhibit 1) was served on Tom William Maloney (the “Member”), requesting his presence on July 26, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for January 17, 2018.
Neither the Member nor his legal counsel were in attendance for the hearing. However, the Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing and that Member’s Counsel could be reached by telephone if needed.
The parties’ agreement on the facts (Exhibit 2) included admissions that the Committee believed met the definition of sexual abuse in the Ontario College of Teachers Act, 1996 (the “Act”); however, the College sought to withdraw the allegation of sexual abuse set out below. For the reasons that follow, the Committee rejected the Agreed Statement of Facts and Guilty Plea (Exhibit 2) and denied the College’s motion to withdraw the allegation of sexual abuse. In the Committee’s view, the acceptance of the agreement would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.
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 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;
(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(e) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
MOTION TO WITHDRAW ALLEGATION OF SEXUAL ABUSE
In accordance with Rule 13.13 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, College Counsel requested the withdrawal of the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member abused a student or students sexually, contrary to subsection 1(7.3) of Ontario Regulation 437/97 and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act.
The Committee heard fulsome submissions from College Counsel as to why it should accept the Agreed Statement of Facts and Guilty Plea and why the College was seeking to withdraw the sexual abuse allegation. The Committee retired to consider the submissions and after thorough consideration informed College Counsel that it intended to reject the Agreed Statement of Facts and Guilty Plea and intended to deny the motion to withdraw the sexual abuse allegation.
On the advice of Independent Legal Counsel, the Committee asked College Counsel if he wished to contact Member’s Counsel and if either or both of them wished to make further submissions before the Committee made its final decision.
After a break in the proceedings, College Counsel advised the Committee that he had spoken with Member’s Counsel but that neither of them wished to make any further submissions. The Committee confirmed its decision to reject the Agreed Statement of Facts and deny the motion to withdraw the sexual abuse allegation.
DECISION ON MOTION
In an oral decision rendered on January 17, 2018, the Committee denied College Counsel’s motion to withdraw the allegation of sexual abuse against the Member as set out at paragraph (c) of the Notice of Hearing. Further, after careful consideration of the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Committee rejected the parties’ agreement, which did not include an admission that the Member contravened subsection 1(7.3) of Ontario Regulation Ontario Regulation 437/97.
REASONS FOR DECISION ON MOTION
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. However, the Committee believes that threshold has been met in this case and the Committee finds that it is therefore appropriate to reject the parties’ agreement in this case.
The Committee was of the view that the Agreed Statement of Facts and Guilty Plea in this case showed that the Member engaged in sexual abuse of students as that term is defined in the Act. Having been presented with these facts, the Committee believed it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest for the Committee to grant the request to withdraw the allegation of sexual abuse set out in the Notice of Hearing. This would cause the public to lose confidence in the College’s discipline processes. It would also lead to an absurd result to allow the Member to avoid a finding of sexual abuse after he has agreed to having engaged in conduct which meets the definition of sexual abuse under the Act.
While the definition of sexual abuse in section 1 of the Act includes more frank acts of sexual interaction and sexual touching, it also includes “(c) behaviour or remarks of a sexual nature by a member towards a student.” The definition does not require that a member intended the remarks or behaviour to be of a sexual nature.
In the Committee’s opinion, there is ample evidence of sexual abuse in the parties’ Agreed Statement of Facts and Guilty Plea. Notably, paragraph 14 of the parties’ agreement sets out an excerpt of a report stating that the Family and Children’s Services of the Waterloo Region “verified a concern that students could be sexually harmed as a result of an apparent escalating pattern on the Member’s part of inappropriate and concerning behaviour” (Exhibit 2 at Tab B). Similarly, paragraphs 5-12 of the Agreed Statement of Facts and Guilty Plea set out admitted conduct that constitutes sexual abuse, regardless of the Member’s assertion that he did not intend his remarks or behaviour to be sexual in nature. Among other things, the Member: touched female students on their buttocks; buttoned up a female student’s [XXX] coat, touching her body as he did so; looked at female students’ breasts, buttocks or crotch, in a way that made them feel uncomfortable; invited students to his home to “have a popsicle”; invited a female student to his home to “lie on his couch”; and gave a student a piece of paper with the number “69” printed on it.
Accordingly, the Committee finds that the test for rejecting an Agreed Statement of Facts was met in this case and it flows from that decision that the Committee also denied the College’s motion to withdraw the allegation of sexual abuse set out in the Notice of Hearing.
The Committee is no longer seized of this matter. The parties may determine the appropriate next steps between themselves as it relates to the existing Notice of Hearing.
Date: January 19, 2018
Tom Potter
Chair, Discipline Panel
______________________________ Sara Nouini, OCT
Member, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel