PUBLICATION BAN: Pursuant to subsection 32.1(3) 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 person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Quaglia 2018 ONOCT 17

Date: 2018-04-27

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

Espedito Ezio Quaglia, OCT, a member of the Ontario College of Teachers.

PANEL: Claudia Patenaude-Daniels, OCT, Chair

Ann Ciaschini, OCT

Tom Potter

BETWEEN: )

) Zirka Jakibchuk,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

– and – )

) Patricia D’Heureux,

ESPEDITO EZIO QUAGLIA ) Cavalluzzo LLP,

(CERTIFICATE #196821) ) assisted by Michael Thorburn,

) Student-at-Law,

) for Espedito Ezio Quaglia

) Julie Maciura,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: April 20, 2018

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 20, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

An Amended Notice of Hearing dated September 28, 2017 (Exhibit 1) was served on Espedito Ezio Quaglia (the “Member”), requesting his presence on October 5, 2017 to set a date for hearing, and specifying the allegations. The hearing was subsequently set for April 20, 2018.

The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

THE ALLEGATIONS

The allegations against the Member in the Amended Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in 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 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);¹

(c) he contravened a law such that the contravention has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(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 failed to comply with the member’s duty under the Child and Family Services Act, contrary to Ontario Regulation 437/97, subsection 1(27).

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Espedito Ezio Quaglia is a member of the Ontario College of Teachers. In June 1989, the Member obtained an Ontario Teacher’s Certificate. In May 1997, the Member obtained a Certificate of Qualification and Registration. The Member has no prior discipline against him at the College and is a member in good standing. Attached as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Greater Essex County District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Windsor, Ontario.

3. On or about September 19, 2014, the Windsor-Essex Children’s Aid Society (the “CAS”) received an anonymous report that a [XXX] year-old female student (the “Student”) had reported to the caller that she was being abused at home by her father.

4. During the CAS investigation, the Student advised that she had also disclosed to the Member that she was being abused by her father. The Member did not report this disclosure to the CAS, contrary to his obligation to do so under the Child and Family Services Act (the “CFSA”).

5. On or about September 18, 2014, the Member met with the Student’s parents about the alleged physical abuse and tried to mediate the situation. The Member warned the Student’s father that if further incidents of abuse were disclosed, the Member would file a report with the CAS. The Member told the Student to keep in contact with him on a daily basis in order to ensure that the Student was fine.

6. On or about September 19, 2014, the Member discussed the Student’s disclosure with the Student’s homeroom teacher. The Member told the homeroom teacher, “you have to make your own call.” The Member then sent a text message to the Student stating that he had spoken to the homeroom teacher and that she would refrain from reporting the abuse.

7. The Member was aware of his duty to report. The Member had reported an earlier incident of alleged abuse pertaining to the Student to the CAS in November 2013. If he were to testify, the Member would say that at the time, he believed his actions were protecting the Student, though he now understands that he should have immediately reported her disclosure to the CAS.

8. On May 11, 2015, in the Ontario Court of Justice, the Member pleaded guilty and was convicted of failing to report a child in need of protection pursuant to section 72 of the CFSA. In agreeing to proceed by way of a guilty plea, the Member accepted full responsibility for his conduct and, in addition, spared the family, including the Student, from having to testify in the court proceeding. He was ordered to pay a fine of $250.00. Attached as Appendix “B” is a certified copy of the Transcript of the Reasons for Sentence of Justice of the Peace H. DeBacker dated May 11, 2015.

9. On June 18, 2015, the Board issued a letter of discipline to the Member. On November 17, 2015, the Board issued a revised letter of discipline, indicating that the Member would be suspended for five days without pay and would be transferred to another school. Attached as Appendix “C” is a copy of the revised letter of discipline dated November 17, 2015. The Member had no prior discipline against him at the Board.

10. Subsequent to his breach of his duty to report, the Member took steps to ensure that he understood his duty to report and related issues of professionalism going forward. He voluntarily participated in two professional boundaries training programs delivered by his union: a full-day Professional Boundaries course delivered by the ETFO Provincial Office, on December 4, 2014; and “Think Before You Click: Communication and Professional Boundaries,” on February 4, 2015. Both of these programs included instruction on the role of the CAS and the duty to report under the CFSA. Attached as Appendix “D” are copies of the written certificates and letters of completion obtained from the course providers.

11. In addition, the Member states that since the incident at issue, he has reviewed the OCT Professional Advisory on the Duty to Report, a copy of which is attached hereto as Appendix “E”, and other relevant Professional Advisories. The Member has also reviewed related advice issued by his union on an ongoing basis, including ETFO’s member bulletin entitled “A Member’s Duty to Report under the Child and Family Services Act.”

GUILTY PLEA

12. By this document², the Member admits the truth of the facts and exhibits referred to in paragraphs 1-11 above (the “Admitted Facts”).

13. 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(17), 1(18) [unprofessional] and 1(27).

14. By this document the Member states that:

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

(b) he understands that 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 the parties with respect to the penalty does not bind the Discipline Committee; and

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

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

DECISION

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Amended Notice of Hearing, namely that the Member contravened subsection 1(15) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Committee granted these requests.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on April 20, 2018 finding the Member guilty of professional misconduct. In particular, the Committee found that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(17), 1(18) [unprofessional] and 1(27).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 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(17), 1(18) [unprofessional] and 1(27).

Paragraphs 4-9 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).

Paragraph 8 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member contravened a law such that the contravention has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17).

Paragraphs 4-9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member he committed acts that having regard to all the circumstances would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4-9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the member’s duty under the Child and Family Services Act, contrary to Ontario Regulation 437/97, subsection 1(27).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar of the Ontario College of Teachers (the “Registrar”) to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) the Member shall enroll in and successfully complete, at his own expense, a course(s) of instruction approved by the Registrar regarding professional boundaries, including instruction on the duty to report to the Children’s Aid Society under the Child and Family Services Act. The Committee acknowledges that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee;

(b) the Member shall provide to the Registrar a written certificate(s) from the course provider(s) stating that the Member has successfully completed the course(s). The Committee acknowledges the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee.

PENALTY DECISION

In an oral decision rendered on April 20, 2018, the Committee accepted the Joint Submission on Penalty presented by the parties and made 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.

College Counsel presented the following cases to demonstrate that the proposed penalty fell within a reasonable range based on previous cases involving similar misconduct: Ontario College of Teachers v. Ross, 2009 ONOCT 46, Ontario College of Teachers v. Tallevi, 2011 ONOCT 33 and Ontario College of Teachers v. Das Gupta, 2009 ONOCT 16. The Committee accepts that, although the circumstances in the present matter are somewhat different from the cases presented by College Counsel, the penalty agreed upon by the parties is within the reasonable range.

The Committee finds that the Member’s failure to fulfill his duty to report warrants a reprimand by his peers. Members of the teaching profession have a legal and ethical duty to report to a children’s aid society when they have reasonable grounds to suspect that a child is or may be in need of protection. As set out in the College’s Professional Advisory regarding the Duty to Report (see Exhibit 2 at Appendix E), members must be mindful of several key elements relating to the duty to report. First, the duty to report is immediate; members must not delay when reporting suspected abuse. Second, the duty to report is direct; members cannot rely on someone else to report on their behalf. Third, the duty to report is ongoing; further reports must be made if the suspected abuse continues. Fourth, the duty to report overrides concerns about confidentiality; members must still report suspected abuse if students disclosed it to them in confidence. Fifth, the duty to report requires members to report suspected abuse to a children’s aid society, and not to investigate it themselves.

Although the College’s Professional Advisory regarding the Duty to Report came into effect after the Member’s misconduct in this matter, the Committee accepts the advice of independent legal counsel that this advisory was simply an articulation of an implicit standard that members were, or ought to have been, aware of before the advisory came into effect.

The Member was aware of his duty to report and took it upon himself to attempt to mediate the situation instead of immediately reporting it to the CAS. By failing to report the suspected abuse, the Member was not acting in accordance with his legal and ethical obligations and he put the vulnerable Student’s well-being at risk. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the requirement for the Member to successfully complete courses of instruction regarding professional boundaries, including instruction on the duty to report to the Children’s Aid Society under the CFSA, is an important element of the penalty ordered. It serves a rehabilitative function. The Committee recognizes that the Member has completed the relevant coursework prior to his discipline hearing. He voluntarily participated in two professional boundaries training programs delivered by his union, which included instruction on the role of the CAS and the duty to report under the CFSA. The Committee is satisfied that no additional coursework is required at this time, and it is encouraged that the Member took full responsibility for his actions and was proactive in addressing his professional shortcomings.

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

Date: April 27, 2018

Claudia Patenaude-Daniels, OCT

Chair, Discipline Panel

______________________________ Ann Ciaschini, OCT

Member, Discipline Panel

Tom Potter

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2For the purposes of paragraphs 12 and 14, this “document” refers to the Agreed Statement of Facts and Guilty Plea.