Ontario College of Teachers v. Awachie, 2018 ONOCT 26

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Awachie 2018 ONOCT 26

Date: 2018-03-26

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 Igwenagu Raphael Awachie, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair Irene Dembek, OCT Stéphane Vallée, OCT

BETWEEN:

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

-and-

IGWENAGU RAPHAEL AWACHIE (CERTIFICATE #418483) Jerry Raso, Ontario English Catholic Teachers’ Association, for Igwenagu Raphael Awachie Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: January 23-24, 2018

DECISION ON FINDING AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 23, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated October 31, 2015 was served on Igwenagu Raphael Awachie (the “Member”), requesting his presence on December 1, 2015 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for, and began on, January 23, 2018 and it continued on January 24, 2018.

The Member was present and had legal representation during the hearing.

OVERVIEW

The allegations in this matter arose as a result of the Member’s alleged conduct during the 2013-2014 academic year. In 2014, the Member is alleged to have: dismissed his students early from class; allowed an unidentified female visitor to enter the school premises during school hours; and to have engaged in sexual activity in his school office with an unidentified female visitor.

The Committee’s task is to 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 under each head of misconduct set out in the Notice of Hearing below.

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 subsection 30(2) 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 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);

(c) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Igwenagu Raphael Awachie is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto Catholic District School Board as a teacher at [XXX] School (the “School”).

3. On or about May 9, 2014, the Member:

(a) dismissed students early from class;

(b) allowed an unidentified female visitor to enter the School prior to the end of the school day.

4. On or about June 12, 2014, the Member engaged in sexual activity in his school office with an unidentified female visitor.

MEMBER’S PLEA

The Member denied all of the allegations set out in the Notice of Hearing and entered a plea of not guilty.

EVIDENCE

The College called two witnesses: 1) Barry White (“Mr. White”), the School’s principal at the time of the events in question; and 2) Anthony Lamanna (Mr. Lamanna”). Various documents were also introduced into evidence, including: Mr. White’s investigation notes; Mr. White’s email report to the superintendent; Mr. White’s preliminary report; the Board’s Code of Conduct; the College’s Ethical Standards for the Teaching Profession; and the College’s Standards of Practice for the Teaching Profession. The College also presented video evidence of the School’s security camera footage. In support of the video evidence, the College presented video logs showing the relevant time stamps and photographs of the classroom where the events in question took place.

Member’s Counsel called the Member as his only witness. Member’s counsel also introduced into evidence the Member’s response to the Board regarding the June 12, 2014 allegation.

College Witnesses

Direct Examination of Barry White

Educational Background

Mr. White is an experienced educator and administrator. He started working with the Toronto Catholic District School Board (the “Board”) in 1983 as a teacher and taught at both the [XXX] and [XXX] level for 19 years. Starting in 2002, he worked as vice-principal for two years, and then as a principal for 13 years. Mr. White was the Member’s principal at the School during the time of the events in question. After approximately seven years as principal at the School, Mr. White retired in June 2017. He now teaches a course in Catholic Foundations at Niagara University and is the founding Member and current president of the Catholic Teachers’ Guild of Toronto.

Participant Expert

College Counsel asked that Mr. White be qualified as a participant expert. College Counsel submitted a Brief of Authorities to assist the Committee with the test required to qualify a witness as a participant expert. Member’s Counsel consented to Mr. White being qualified as a participant expert and conceded that if the particular in paragraph 4 of the Notice of Hearing was proven it would support a finding that the Member breached the standards of the profession referable to teacher behaviour at the School. After receiving the above submissions from the parties and independent legal counsel’s advice, the Committee qualified Mr. White as a participant expert on the standards of the profession referable to teacher behaviour at the School.

The School

College Counsel asked Mr. White questions about the School’s environment, hours, physical layout and policies. Mr. White testified the School is a [XXX] school for [XXX] of both [XXX] and [XXX] ages. The School’s focus is on training students to [XXX] and every student commits to [XXX] in [XXX] for the majority of the school year. He stated that while the focus of the School’s extra-curricular activities revolved around [XXX], the School also had other extra-curricular activities such as volleyball and robotics. Mr. White stated that the School’s hours for [XXX] students were 8:25 a.m.-3:30 p.m. and for [XXX] students it was 8:25 a.m.-3:15 p.m.

Mr. White testified that the School is located in downtown [XXX], on [XXX] near [XXX], which is surrounded by an area described by him as a “downtown urban mix.” The School has two buildings, one at [XXX] and the other at [XXX]. He testified that [XXX] is known as the [XXX] building” and [XXX] is known as the building [XXX].” Mr. White stated that the buildings are attached to each other and that the [XXX] school science lab (room [XXX]), which contains the Member’s office [XXX], is located at [XXX]. Mr. White testified that the [XXX] school building has three doors. Two doors are locked from the outside so that members of the public cannot walk in to the School off the street. The only way to open these doors is from the inside of the School, whereas the third door (the “main door”) is open from the outside to allow visitors to enter the School. He stated that, for security reasons, the main door is the only door open to visitors and that it leads directly to the School’s office.

Mr. White stated that the School’s policies required visitors to report to the main office to receive a lanyard that identifies them as a visitor. He stated that this policy was in place to ensure that students and staff are safe, given the “urban” nature of the surrounding area.

The June 12, 2014 Allegation

The allegation from June 12, 2014 involving the Member was first brought to Mr. White’s attention by the vice-principal of the School, Nick Kovacs (“Mr. Kovacs”). On June 12, 2014, Mr. Kovacs called Mr. White and told him that the caretaker, Mr. Lamanna, had just called him and reported that he had seen the Member having intercourse with an unidentified woman in the Member’s office within the science lab. After receiving the phone call from Mr. Kovacs, Mr. White emailed his superintendent, John Shanahan (“Mr. Shanahan”) that night informing him of the allegations involving the Member and seeking his advice.

Starting on June 13, 2014, Mr. White carried out an investigation. His investigation notes were entered as Exhibits 4, 6, 9 and 10. The investigation notes are thorough and they document the events surrounding the June 12, 2014 allegation and include: interview notes with Mr. Lamanna; notes from discussions with Mr. Shanahan; notes from checking the School’s security cameras with Mr. Kovacs; a handwritten worksheet documenting the relevant video logs from the School’s security-camera footage; a preliminary investigation report outlining the June 12, 2014 event; and an email to Mr. Shanahan providing further information at his request, as well as additional information relating to the May 9, 2014 allegations.

On June 13, 2014, Mr. White recorded in his notes (Exhibit 4) that he checked the School’s security camera footage with Mr. Kovacs. Mr. White testified that he checked the security-cameras that day to see if Mr. Lamanna’s report could be verified. The School’s security footage was entered into evidence as Exhibit 5. Mr. White’s handwritten log of the security footage was entered into evidence as Exhibit 6. Exhibit 6 outlines the relevant time stamps relating to the allegations on May 9, 2014 and the allegation on June 12, 2014.

College Counsel played the video clips (Exhibit 5) pertaining to the incident on June 12, 2014. Using his handwritten video log (Exhibit 6) and College Counsel’s typed version of the video log (Exhibit 7), Mr. White testified about what he saw from the June 12, 2014 footage. Mr. White identified the Member walking down a staircase, opening up a “back door” (that is locked from the outside), and letting in an unknown woman between 4:12:42 p.m. and 4:13:12 p.m.

Between 4:12:31 p.m. and 4:13:27 p.m., Mr. White identified the Member leaving thescience lab (room [XXX]), walking towards the stairwell, returning with an unidentified female in the hallway outside room [XXX], and then entering the science lab together. Mr. White stated that this is not the School’s protocol for letting visitors onto the School’s premises. Mr. White identified the caretaker, Mr. Lamanna, entering the same science lab at about 5:15 p.m. and exiting the science lab approximately 27 seconds later and walking towards the main office. Mr. White stated that it would normally take Mr. Lamanna longer than 27 seconds to clean the science lab. Between 5:39:48 p.m. and 5:40:11 p.m., Mr. White identified the Member and the unidentified female leaving the building using the same stairwell and door the female visitor entered through. Mr. White stated that this is not the way a visitor is supposed to exit the School’s premises.

On June 13, 2014, Mr. White met with Mr. Lamanna regarding the events of June 12, 2014 and recorded notes from the meeting (Exhibit 4). The notes state that Mr. Lamanna told him what he witnessed the previous night. Mr. White also recorded that Mr. Lamanna had seen women in the Member’s office, during the evening hours, for the past three years. Mr. White’s notes also record that Mr. Lamanna signed a typed version of his testimony regarding the sexual encounter he witnessed on June 12, 2014.

Mr. White prepared a preliminary report on June 13, 2014 and this was entered as Exhibit 9. The report outlined the following information: on June 12, 2014, Mr. Lamanna was carrying out his cleaning duties when he entered the science lab and witnessed the Member having intercourse with a woman. Mr. Lamanna left the science lab, spoke with the School’s secretary, Lucy De Cesare (“Ms. De Cesare”), and then phoned Vince De Prospero (the person on the Board who supervises the caretakers) and Mr. Kovacs to report what he had seen. Mr. Kovacs in turn phoned Mr. White. Further, the report stated that on the evening of June 12, 2014, Mr. Lamanna wrote out a detailed description of what he saw on June 12, 2014 and signed a typed version of his statement. Mr. White’s report stated that on the morning of June 13, 2014, he checked the security cameras and noted the relevant time stamps. Mr. White reported that Mr. Lamanna advised him that he had seen women in the Member’s office over the past three years and that he had previously seen the particular woman he saw on June 12, 2014. Mr. White testified that this preliminary report was accurate and reflected his best efforts to document what he found and what he observed.

Mr. White testified that after reviewing the security footage on June 13, 2014, he was of the opinion that the allegation that he heard from the vice-principal, namely that Mr. Lamanna witnessed the Member having intercourse in his office with an unidentified female, was in fact credible. Mr. White stated that he was surprised to see the security footage and that the woman in the footage was not the Member’s wife.

The May 9, 2014 Allegations

College Counsel played the video clips (Exhibit 5) from May 9, 2014. Using his handwritten video log (Exhibit 6) and College Counsel’s typed version of the video log (Exhibit 7), Mr. White testified about what he saw from the footage. Mr. White testified that the security footage showed [XXX] students leaving the science lab at 2:33 p.m. Mr. White stated that the last period of [XXX] ends at 3:15 p.m. and that he had no recorded reason as to why the Member’s students were dismissed approximately 45 minutes early. He testified that he recorded the relevant time stamps from the May 9, 2014 footage because there was a safety concern with dismissing students early from class.

Mr. White identified the Member holding a pink folder and walking down the hallway towards the stairwell at approximately 3:18 p.m. Between 3:18:22 p.m. and 3:18:53 p.m., Mr. White stated that the video footage shows the Member walking down the staircase, opening one of the School’s back doors, and letting in an unidentified woman. Mr. White testified that he was unsure if the woman in this footage was the same woman seen in the June 12, 2014 footage. Mr. White testified that the Member and the unknown woman entered the science lab at 3:19 p.m. He stated that the [XXX] students would have still been in class at that time since school was not over for them until 3:30 p.m. Mr. White testified that approximately an hour after entering the science lab, the footage showed the unknown woman leaving the science lab, entering the female staff washroom, exiting the washroom, and returning to the science lab. He stated that approximately seven minutes after the unidentified woman returns to the science lab, the Member leaves the science lab and enters the men’s washroom. Mr. White identified the Member and the unknown female leaving the science lab at approximately 4:33:31 p.m., and presumably leaving the building. Mr. White opined that the events shown in the May 9, 2014 footage were inappropriate because there was a safety concern surrounding the early dismissal of students and a violation of the School’s visitor policy.

Mr. White’s notes (Exhibit 4) recorded a conversation with Mr. Shanahan from June 23, 2014. Mr. White testified that he learned from Mr. Shanahan that the Member met with the Board and that he was denying the allegations. He stated that the Member told the Board that Mr. Lamanna was “out to get him.” Mr. White testified that he was not aware of any grudge between the Member and Mr. Lamanna but acknowledged that there had been an issue in the past where the Member had accused Mr. Lamanna of unplugging his fridge. Mr. White testified that his notes contained a notation to himself to check the security footage surrounding the relevant events.

Mr. White drafted and sent an email to Mr. Shanahan on July 4, 2014, and this was entered as Exhibit 10. The email outlined the relevant time stamps from the security footage (noted above) relating to the events on May 9, 2014. Specifically, the email recorded the following: the Member dismissed his students at 2:33 p.m.; the Member went to the back door, let in an unknown female, and accompanied her to the science lab at approximately 3:18 p.m.; the unknown female left the science lab to use the washroom at approximately 4:16 p.m. and then returned to the science lab; the Member left the science lab at approximately 4:26 p.m. to use the washroom and then returned to the science lab; and the Member and the unidentified woman left the School together at approximately at 4:33 p.m. Mr. White’s email also noted that the [XXX] school students were in class when the Member let the unknown woman into the School and that the science lab was located in the [XXX] building. Mr. White testified that he included this information because the [XXX] school students could have walked into the unlocked science lab when the Member and the unknown female were in there.

The Board’s Code of Conduct and College Standards

Mr. White was also asked questions about the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (see Exhibit 11) and the Board’s Code of Conduct (see Exhibit 12). Mr. White testified that the Member’s sexual encounter on the School’s property breached the ethical standards for the teaching profession (namely respect). He stated that it is “completely shocking” that the Member had intercourse on the School’s property. It is inappropriate, disrespectful to the School community and the colleague who shares the office, and undermines the Catholic teaching of matrimonial fidelity. Mr. White further testified that by allowing an unidentified woman to enter the School’s premises during school hours, by engaging in sexual relations on the School’s property, and by dismissing his students early, the Member demonstrated a lack of leadership in learning communities (which is a standard of practice of the teaching profession) by not promoting a safe learning environment. Mr. White testified that the Member did not meet the expectations set out in the Board’s Code of Conduct because he showed a lack of respect for the School’s climate and he was not a positive role model.

Cross-examination of Mr. White

Counsel for the Member cross-examined Mr. White about the allegation that the Member dismissed his students early from class on May 9, 2014. Mr. White testified that based on the video evidence (Exhibit 5), the Member dismissed his [XXX] students at 2:33 p.m. He stated that he was not aware of any reason as to why the Member dismissed the students approximately 45 minutes early. Counsel for the Member advised Mr. White that the Member was going to testify that he normally has 16 students in that class but, on May 9, 2014, 13 of his students were in [XXX]. Counsel for the Member advised Mr. White that the Member was going to testify that he dismissed the remaining three students early so that they could join their classmates in [XXX]. Mr. White testified that the early dismissal of the students was possibly appropriate and possibly inappropriate. He stated that the issue was that the reason for the early dismissal was not known to him at the time.

Counsel for the Member cross-examined Mr. White about the reliability of his notes (Exhibit 4). Mr. White testified that his notes were an accurate reflection of the events that transpired on June 12, 2014.

Mr. White was cross-examined about his knowledge of the relationship between Mr. Lamanna and the Member. Mr. White stated that he recalled that there had been an incident regarding a shelf in the Member’s office. Mr. White testified that there had also been incident between Mr. Lamanna and the Member regarding a fridge that was unplugged. Mr. White could not recall any other incident between Mr. Lamanna and the Member.

Direct Examination of Anthony Lamanna

Background

Mr. Lamanna was 30 years old at the time of the hearing. He started his job as a custodian with the Board in 2007. Mr. Lamanna obtained a permanent position at the School in 2010. He was one of the assistant caretakers during the 2013-2014 academic school year and was assigned to the [XXX] school building.

Daily Routine

Counsel for the College asked Mr. Lamanna questions about what a typical day would entail. Mr. Lamanna testified that his duties had remained the same since he started at the School in 2010. He stated that he would start work around 3:30 p.m. and end around 11:30 p.m. Mr. Lamanna testified that at 3:30 p.m. he would debrief with the morning custodian regarding activities or events that were happening that day at the School. Following this, he would gather his tools and start working. Mr. Lamanna testified that he was assigned to two floors of the [XXX] school building and was responsible for mopping and sweeping the floors and taking out the garbage and recycling. Mr. Lamanna testified that his tools were kept in a room across the hall from the [XXX] science lab (room [XXX]). He stated that he would typically gather his tools and start cleaning the classroom across from the science lab and then go across the hallway and start cleaning room [XXX]. Mr. Lamanna testified that each classroom would take approximately 15-20 minutes to clean.

Events on June 12, 2014

Counsel for the College showed Mr. Lamanna four photos of the [XXX]school science lab and entered the photos as Exhibit 13. Mr. Lamanna testified that the photos were an accurate reflection of what the science lab looked like in 2014. Mr. Lamanna testified that the first photo was an image from the left side of the science lab facing the teacher’s office [XXX] at the back of the room. He stated that the second photo showed a white wall dividing the classroom from the teacher’s office. Mr. Lamanna testified that the third photo was taken from the vantage point of the second photo, showing that it was easy to see over the dividing wall into the teacher’s office. He stated that the fourth photo showed the inside of the teacher’s office and that the image reflected the layout of the office as it was in June 2014. Mr. Lamanna testified that the teacher’s office had two desks and that in 2014, the desk on the left was the Member’s and the one on the right belonged to a teacher named Rebecca.

Counsel for the College showed Mr. Lamanna video footage (Exhibit 5) from June 12, 2014. Mr. Lamanna testified that the video footage showed him leaving room 202, which was across from the science lab, at around 5:15 p.m. He admitted that this was late for him to start his cleaning duties. He testified that the reason he started late on June 12, 2014 was because his friend was the supply custodian during the day and that he spent a good amount of time talking to him before he started working.

Mr. Lamanna identified himself in the video entering the science lab around 5:15:34 p.m. and exiting approximately 27 seconds later. He stated that he left the science lab approximately 27 seconds after he entered because he witnessed the Member and a female visitor engaging in sexual intercourse. Mr. Lamanna testified that 27 seconds is not the usual time it takes him to clean the science lab.

College Counsel asked Mr. Lamanna to explain what happened on June 12, 2014 and why he left the science lab approximately 27 seconds after he entered. Mr. Lammana testified about the sequence of events. He entered the science lab and began to do his work in clockwise motion when he noticed a foot and leg in the window of the teacher’s office. He found that to be strange so he moved closer (to the position depicted in photo 2 of Exhibit 13) and looked through the window of the teacher’s office. He saw a woman lying with her back on the Member’s desk with her “legs spread eagle.” The Member was clearly “thrusting” and it was obvious to him that they were having sexual intercourse. The Member saw him and they made direct eye contact. The Member immediately stopped what he was doing, pulled up his pants, and the woman pulled down her skirt. Mr. Lamanna testified that he saw the Member’s face and the profile of the unidentified female’s face as well as her leg. He stated that she was “[XXX], with [XXX] and [XXX].”

Mr. Lamanna testified that the footage from June 12, 2014 (Exhibit 5) showed him leaving the science lab immediately after witnessing the sexual encounter and walking straight towards the office. He stated that at the time he was feeling confused and shocked because he had never seen anything like that before. He testified that he did not know what to do and went to the office to look for Mr. White, who was not there at the time. Mr. Lamanna stated that the School’s secretary, Ms. De Cesare, saw him and asked him what happened. Mr. Lamanna testified that after telling her what he witnessed, she advised him to call Mr. White, Mr. Kovacs, and his supervisor. Mr. Lamanna testified that he and Ms. De Cesare witnessed the Member and the unidentified female visitor leaving the School.

Mr. Lamanna testified that he called his supervisor and texted Mr. Kovacs. He stated that he then spoke to Mr. Kovacs on the evening of June 12, 2014 and advised him of the events he had witnessed earlier that evening. He stated that Mr. Kovacs asked him to document the events that transpired that day. Mr. Lamanna testified that Exhibit 8 consisted of his hand written statement (which was created on June 12, 2014), and his typed statement with his signature. He testified that this document reflected an accurate record of what transpired on June 12, 2014.

Counsel for the College showed Mr. Lamanna the video footage (Exhibit 5) from June 12, 2014, which portrayed the Member letting the unidentified female visitor into the School and them entering the science lab. Mr. Lamanna testified that the unidentified woman in the video footage was “definitely” the same woman he witnessed the Member engaged in sexual activity with on June 12, 2014.

Counsel for the College showed Mr. Lamanna Mr. White’s Preliminary Report dated June 13, 2014 (Exhibit 9). Mr. Lamanna testified that he spoke with Mr. White and that this document represented an accurate depiction of the events that transpired on June 12, 2014. However, Mr. Lamanna testified that he did not tell Mr. White that he had seen the unidentified female visitor twice within the last week leading up to the events on June 12, 2014. He stated that he told Mr. White that he had seen her before at some point during the preceding weeks.

Events on May 9, 2014

Counsel for the College showed Mr. Lamanna the video footage (Exhibit 5) from May 9, 2014. Counsel asked Mr. Lamanna if the footage of the Member letting in an unidentified female visitor was the same person he saw on June 12, 2014. Mr. Lamanna testified that he could not tell from the footage if she was the same person from June 12, 2014 or not. He stated that he had seen the Member with other female visitors on previous occasions. Mr. Lamanna testified that the Member’s office used to be located in an older part of the [XXX] school building. He stated that between the time the Member had his old office until June 12, 2014, he witnessed the Member with a female visitor approximately eight times. Mr. Lamanna testified that he never reported the Member on any of the previous occasions because he had never witnessed the Member engaging in sexual activity. He stated that he reported the Member on June 12, 2014 because he witnessed the Member and the female visitor engaging in sexual activity.

Relationship with the Member

Counsel for the College advised Mr. Lamanna that there was a suggestion that he and the Member had a strained relationship. Mr. Lamanna testified that his relationship with the Member was a working relationship and that it was neither friendly nor unfriendly. He stated that the two of them had never argued or exchanged heated words.

Counsel for the College told Mr. Lamanna about a suggestion in the case regarding potential conflict between himself and the Member. Mr. Lamanna was first asked about an incident regarding a shelf. He stated that the “shelf incident” occurred when the Member was in his old office (not the science lab office). Mr. Lamanna testified that the shelf was an old homemade shelf with boxes and books stacked on top. He stated that, on one occasion, he was cleaning and a box fell off the shelf and almost hit him. Mr. Lamanna testified that he had no duty relating to health and safety but stated that if he saw a health and safety concern he would report it to his supervisor. He stated that he recalled being concerned about the falling boxes and reported it as a health and safety hazard. Mr. Lamanna testified that the shelf was dismantled after he reported it and that there was neither an apology nor a confrontation between himself and the Member regarding the shelf.

College Counsel asked Mr. Lamanna if he recalled a second conflict between himself and the Member over the Member’s washroom (the “washroom incident”). Mr. Lamanna testified that he had a vague memory of his supervisor telling him to pay more attention to the washroom the Member used. He stated that he recalled it had something to do with forgetting to replace the toilet paper. Mr. Lamanna testified that this incident did not cause him to dislike the Member.

Finally, College Counsel asked Mr. Lamanna about a suggestion that he unplugged the Member’s fridge (the “fridge incident”). Mr. Lamanna testified that he had no memory of this and that he does not unplug fridges during the course of his duties.

Cross-examination of Mr. Lamanna

Counsel for the Member asked Mr. Lamanna about the contents of Mr. White’s Preliminary Report dated June 13, 2014 (Exhibit 9). Specifically, Counsel for the Member noted that Mr. White documented that Mr. Lamanna advised him that he had seen the unidentified woman from June 12, 2014 twice in the preceding week. Mr. Lamanna testified that he did not tell Mr. White that he saw the unidentified woman twice in the preceding week and that it must have been a miscommunication.

Counsel for the Member asked Mr. Lamanna questions about his ability to witness the alleged sexual encounter on June 12, 2014. Mr. Lamanna testified that it was easy to see over the wall that separated the science lab from the teacher’s office since the wall only reached the height of his waist. Mr. Lamanna testified that he could see through the window of the teacher’s office clearly and saw the unidentified female visitor crouch down after he had witnessed her and the Member engaging in sexual activity.

Counsel for the Member advised Mr. Lamanna that the Member would later testify that he complained to Mr. Lamanna about the state of the washroom the Member used. Mr. Lamanna testified that he and the Member never spoke directly about this complaint but remembered receiving a reminder from his supervisor to pay more attention to that washroom. Counsel for the Member advised Mr. Lamanna that the Member would later testify that Mr. Lamanna complained about the Member lying down in the staff room. Mr. Lamanna testified that he had a very vague recollection of seeing the Member lying down but stated that he did not complain to anybody about this. Counsel for the Member advised Mr. Lamanna that the Member would later testify that Mr. Lamanna unplugged his fridge. Mr. Lamanna testified with certainty that he did not unplug the Member’s fridge.

Counsel for the Member asked Mr. Lamanna questions about a document titled “Environmental Scan” and entered it into evidence as Exhibit 14. Mr. Lamanna testified that this document contained his answers to questions about an investigation into another teacher’s complaint regarding a toxic work environment. Counsel for the Member asked Mr. Lamanna why his answers (in Exhibit 14) contained “comments” about the Member. Specifically, the comments included that: the Member was getting an “upgrade” for an office; and, that the new teacher sharing an office with the Member “isn’t too happy” because he is a “pack rat.” Mr. Lamanna testified that the Environmental Scan was about the teacher that had been moved, and that he made those comments because he was being asked direct questions about those affected by the move.

Re-examination of Mr. Lamanna

Counsel for the College asked Mr. Lamanna to explain more about the Environmental Scan document (Exhibit 14). Mr. Lamanna testified that a teacher was moved, which resulted in a chain reaction of office moves and filed grievances. He stated that, as a result, every staff member in the School was interviewed and asked questions that related to the toxicity of the work environment. Mr. Lamanna testified that his responses in the document were because he was asked about the office moves and how it was affecting teachers. College Counsel asked Mr. Lamanna why the Member’s move to a new office was “an upgrade.” Mr. Lamanna testified that the Member’s previous office was in an older part of the building that had heating problems. He stated that the previous office was “dingy” and that the new office (in the science lab) was “nicer.” Counsel for the College asked Mr. Lamanna about the “pack rat” reference (Exhibit 14). Mr. Lamanna stated that this comment was a reference to the health and safety concern about the number of boxes and items in the Member’s office. Mr. Lamanna testified that the “pack rat” comment was not a way to “get back” at the Member. Rather, he stated, it was in reference to Rebecca (the teacher sharing the new office with the Member) and how she was not happy to have so many boxes moved into the shared office.

Member’s Counsel’s Witness

Direct Examination of the Member

Background

The Member lives in[XXX], Ontario. The Member testified that he has been a teacher for over 20 years. He taught at the School during the 2013-2014 academic year and had been a teacher at the School for 15 years prior to the 2013-2014 academic year. The Member testified that he has taught [XXX], [XXX], [XXX], [XXX] and [XXX]at the School. The Member stated that prior to this case he had never been accused of improper behaviour.

Events on May 9, 2014

Counsel for the Member asked the Member questions regarding the early dismissal of his students on May 9, 2014. The Member admitted that he dismissed his grade [XXX] [XXX] students approximately half a period early. He stated that the School is focused on [XXX] and that when there is a [XXX]rehearsal teachers are obligated to allow their students to participate in it. The Member testified that on May 9, 2014, the grade [XXX] students had a [XXX] rehearsal in preparation for their [XXX]. He stated that the day prior to May 9, 2014 the students had just returned from a [XXX] tour. The Member testified that he had 16 grade [XXX] students in his [XXX] class, but that on May 9, 2014 only three of them attended his class. He stated that most of his students did not come to school that day because they were tired from the [XXX] tour. The students who did attend school were not in his class because they were in the grade [XXX] [XXX] rehearsal. The Member testified that he dismissed the remaining three students early in order to allow them to participate in the [XXX] rehearsal.

Counsel for the Member asked the Member about allowing an unidentified female visitor on the School premises during school hours. The Member admitted that he allowed an unidentified female on the School premises on May 9, 2014. However, the Member stated that when he allowed the visitor into the School, he believed that “school hours” were over because the [XXX] day was over.

The Member testified that his office [XXX] was close to a staircase that led to one of the School’s back doors. He stated that he opened this door for the female visitor on May 9, 2014 and accompanied her straight to his office.

The Member testified that, at the time, he was under the impression he could let in a visitor through the back door. He stated that on May 9, 2014 he let the female visitor into the school after the [XXX] day was over and that he thought he was allowed to do so. The Member testified that he first learned about the visitor policy (namely, that visitors must enter through the main door of the School) on June 20, 2014 in a meeting with the principal. He stated that in the meeting with the principal on June 20, 2014 he was made aware of the School’s visitor policy, as well as the allegations against him. The Member testified that the policy was discussed in two teachers’ meetings, on June 29, 2012 and August 30, 2012, and that he was not present at either meeting. He stated that he was not otherwise informed about the visitor policy until the June 20, 2014 meeting with the principal.

Events on June 12, 2014

Member’s Counsel asked the Member about the June 12, 2014 allegation. The Member denied engaging in sexual activity in his school office.

The Member testified that he opened the back door for a female visitor on June 12, 2014 around 4 p.m. He stated that the [XXX] day was over and that he thought it was okay to let the visitor into the School through the back door.

The Member testified that after he let the unidentified female visitor into the School he accompanied her to his office in the science lab. He stated that he gave her a “visitor’s seat” in his office while he hurried to finish his work for the day. The Member testified that he was preparing exam papers, marking students’ work, and running back and forth between his office and the main office. The Member testified that the female visitor was also a [XXX] and that she was doing schoolwork during the time she was in his office on June 12, 2014. He stated that he did not engage in sexual intercourse with the female visitor in his office on June 12, 2014.

The Member testified that the female guest visited him on June 12, 2014 to give him a lift home. The Member testified that the visitor also lived “up north” and having her drive him home would save him from having to commute by public transit. He stated that he and the unidentified female visitor left the School around 5 p.m. or 6 p.m. and that she gave him a lift home.

Counsel for the Member asked the Member about Mr. Lamanna’s testimony, specifically, that he saw the Member and the unidentified female visitor engaging in sexual activity on June 12, 2014. The Member testified that he heard Mr. Lamanna enter the science lab that evening and that he opened his office door to check who was entering the science lab. He stated that he saw it was Mr. Lamanna and went back into his office to continue his work.

Relationship with Mr. Lamanna

Counsel for the Member asked the Member about his relationship with Mr. Lamanna and about four incidents that occurred between the two of them. The Member testified that his relationship with Mr. Lamanna was “frosty.”

The Member then testified about the washroom incident. He stated that his old office (prior to 2012) was in room 327 and that it had a washroom attached to it that a number of teachers would use. The Member testified that Mr. Lamanna had not cleaned the washroom for a number of weeks and complained to him directly about that. The Member stated that Mr. Lamanna did not start cleaning the washroom as he had asked so he took the complaint to the main caretaker. The Member testified that following the complaint, Mr. Lamanna stopped talking to the Member and that this created “fraction” in the relationship because Mr. Lamanna would not speak to him.

Counsel for the Member asked the Member about the shelf incident. The Member testified that in November of 2012 he was called to the main office regarding a health and safety concern. The Member stated that a representative from the Board was present and showed him pictures of books that had fallen off a shelf in his office. The Member testified that he advised the Board representative that the books did not belong to him and instead belonged to the teacher who used to occupy that office. The Member testified that it was Mr. Lamanna who reported the shelf incident. The Member stated that he was concerned about being reported to the office for a health and safety concern.

Counsel for the Member asked the Member about Mr. Lamanna finding him lying down in the staff room (the “sleeping incident”). The Member testified that in 2012 he was preparing midterm marks in the staff room. He testified that he was tired and moved to the couch to lie down and take a rest. The Member testified that Mr. Lamanna entered the staff room and saw him resting. The Member stated that after Mr. Lamanna left the room, he (the Member) sat up on the couch when Mr. White entered the staff room. Mr. White walked around the staff room, greeted the Member, and then left the room. The Member testified that he then returned to his original seat and continued to work on the midterm marks.

Counsel for the Member asked the Member about the fridge incident. The Member testified that on a Friday in May of 2012, he was at school until around 8 p.m. to finish some marking. He stated that all the teachers had left by this time. The Member testified that his fridge was located at the far end of his office and that he did not share an office with any other teacher at this time. The Member stated that when he returned to school the following Monday the fridge had been unplugged and the food inside had spoiled. The Member testified that Mr. Lamanna was in charge of attending to that part of the building and that no other teachers had access to his office.

Cross-examination of the Member

Timeline about Relationship with Mr. Lamanna

College Counsel cross-examined the Member about the timeline of the incidents that occurred between Mr. Lamanna and the Member. The Member testified that the bathroom incident occurred in late 2011, the staff room incident occurred in April of 2012, the fridge incident occurred in May of 2012, and the shelf incident occurred in November of 2012. The Member agreed with College Counsel’s proposition that there were no incidents between himself and Mr. Lamanna from November of 2012 until June of 2014.

Early Dismissal on May 9, 2014

College Counsel displayed the security footage (Exhibit 5) from May 9, 2014. College Counsel showed the Member the video clip of his students leaving the science lab at 2:33 p.m. The Member admitted that this footage was consistent with his testimony that he dismissed his students early from class on May 9, 2014.

Unidentified Female Visitor on School Premises on May 9, 2014

College Counsel displayed the May 9, 2014 security footage (Exhibit 5) showing the Member letting in an unidentified female visitor at 3:18 p.m. The Member admitted that it was him in the video footage and that he was opening one of the School’s back doors to allow the female visitor to enter. The Member testified that he let the female visitor onto the School’s premises at 3:18 p.m. on May 9, 2014. He testified that he let her in a few minutes after the [XXX] day ended and that this was about 11 or 12 minutes before the [XXX] school day ended. The Member acknowledged that the science lab and his office were located in the [XXX] school building. The Member testified that, on some days, students at the School have [XXX] practice and/or other extra-curricular activities that take place after school hours.

The Member admitted that the female visitor was on the School premises and in the Member’s office between 3:18 p.m. and 4:33 p.m. on May 9, 2014. The Member testified that the unidentified female visitor shown in the May 9, 2014 footage was the same female visitor that he allowed onto the School premises on June 12, 2014.

Visitor Policy

College Counsel questioned the Member about his knowledge of the School’s visitor policy during school hours and after-school hours. The Member testified that, as of May 9, 2014, he was aware of the School’s policy that required visitors to enter through the main doors of the School and to sign in with the office during school hours. The Member further testified that, as of May 9, 2014, he was not aware of any visitor policy in place for visitors after school hours. The Member stated that he was only made aware of the School’s visitor policy regarding after school hours on June 20, 2014.

The Member testified that the School’s visitor policy was communicated to teachers at the staff meetings on June 29, 2012 and on August 30, 2012. The Member stated that he was not present for either staff meeting and that no information was communicated to him by the administration regarding the visitor policy. The Member further testified that, to his knowledge, the School’s visitor policy (both during and after-school hours) was not communicated to the staff during the 2012-2013 and 2013-2014 academic years.

It was the Member’s evidence that, as of May 9, 2014, there was no visitor policy in place at the School after school hours. Further, the Member’s testified that absent any information from the administration to the contrary, it was acceptable for him to let a visitor in through the back door of the School provided that he accompanied the visitor once she entered.

Events on June 12, 2014

College Counsel showed the Member the video security footage (Exhibit 5) from June 12, 2014. The Member admitted that the video showed him letting in an unidentified female through one of the School’s back doors at approximately 4:12 p.m. The Member stated that, at this time, both [XXX] and [XXX] school had been dismissed.

The Member testified that the unidentified female shown in the June 12, 2014 security footage was the same female visitor that he had allowed in on May 9, 2014. He testified further that he let the female guest in through the same back door as he had done on May 9, 2014.

Following College Counsel’s questioning, the Member admitted that the security footage (Exhibit 5) showed him and the unidentified female entering the science lab (room [XXX]) at approximately 4:13 p.m. The Member identified Mr. Lamanna entering the science lab at approximately 5:15 p.m. The Member admitted that the security footage showed Mr. Lamanna leaving the science lab approximately 27 seconds after he entered. The Member testified that, based on the video footage, Mr. Lamanna left the science lab without carrying out his custodial duties. The Member stated that he saw Mr. Lamanna during the 27 seconds that he was in the science lab.

During the hour and a half that the unidentified female visitor was in the Member’s office (within the science lab), the Member testified that she was sitting on a chair and reading while waiting for the Member to finish his preparations so that she could give him a lift home.

Response to the Board

College Counsel entered into evidence the Member’s response to the Board regarding the June 12, 2014 allegation (Exhibit 15). The Member testified that his written response to the June 12, 2014 allegation was that the female visitor waited in his office while he finished preparing his exam papers. The Member testified that he went back and forth between his office and the main office more than two times that evening, and that he handed Ms. De Cesare his exam papers before he left that night. College Counsel asked the Member if Ms. De Cesare was coming to testify: the Member stated that he did not know whether she was coming.

Details about the Unidentified Female Visitor

In response to a question from College Counsel, the Member testified that his wife was in the gallery of the hearing and agreed that if the allegation of sexual intercourse were found as a fact, it would be detrimental to his marriage.

College Counsel questioned the Member about this relationship with the unidentified female visitor. The Member admitted that the unidentified female visitor was at the School on both May 9, 2014 and June 12, 2014, and was there to do the Member a favour by driving him home. The Member testified that the “unidentified female” is a family friend that is in her [XXX]]. He stated that they have been family friends for over 20 years and that she knows his wife and children. The Member testified that the unidentified female visitor knows where the Member lives and that he knows where she resides and has visited her at her home in [XXX]. The Member stated that they are connected through the same [XXX] in [XXX]. He testified that the female visitor used to be [XXX] and is now [XXX]. The Member testified that the unidentified female visitor is a [XXX] and is part of the [XXX] as well as the [XXX].

After considering the submissions by the parties and advice from independent legal counsel, the Committee approved of College Counsel asking the Member to identify by name the “unidentified female visitor.” The Member testified that her name is [XXX] (“ [XXX]”). The Member admitted that during both the Board’s investigation as well as the College’s investigation he did not disclose [XXX]’s name. It was only during College Counsel’s cross-examination that [XXX]’s name was disclosed by the Member.

College Counsel questioned the Member about why [XXX] was not called to testify at the hearing. The Member was handed the Notice of Hearing (Exhibit 1) and confirmed that it was dated October 31, 2015. The Member confirmed that the hearing dates (January 23-24, 2018) were scheduled in July 2017. The Member testified that he left the country in August of 2017 and did not return until December of 2017. He testified that shortly after the Notice of Hearing was issued in 2015, he spoke to [XXX] on the phone and informed her of the proceeding against him. The Member stated that he had seen [XXX] on one occasion since January of 2016. The Member testified that he did not tell [XXX] about the hearing dates that were scheduled in 2017. The Member admitted that as a good family friend, [XXX] would be willing to help him if he asked her to.

SUBMISSIONS OF THE PARTIES

College Counsel’s Submissions

College Counsel referred the Committee to Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services, 1985 CanLII 2053 (ON SC) (“Pitts”) to assist the Committee in assessing the credibility of the witness testimony. Relying on the credibility factors delineated in Pitts, College Counsel provided detailed submissions as to why Mr. White and Mr. Lamanna were credible witnesses. He contrasted this with the testimony of the Member, and explained why the Committee ought to find that the Member was not a credible witness. Further, College Counsel submitted a Brief of Authorities to prove that an adverse inference could be drawn against the Member for failing to call Ms. De Cesare (the School’s secretary) and [XXX] (the previously unidentified female visitor). College Counsel provided detailed submissions on the test for adverse inference and how the Committee could properly draw an adverse inference against the Member for not calling Ms. De Cesare or [XXX] as witnesses.

College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct under each of the heads of misconduct set out in the Notice of Hearing. According to College Counsel, the credible and consistent witness testimony and the documentary evidence before the Committee clearly establish that the Member improperly dismissed students early from class on May 9, 2014, that he allowed [XXX] to enter the School premises during school hours on June 12, 2014, and that he had sexual intercourse with [XXX] in his school office on June 12, 2014. College Counsel submitted that the College has proven, on a balance of probabilities, each allegation in the Notice of Hearing.

College Counsel provided further detailed submissions regarding each head of misconduct alleged in the Notice of Hearing and submitted that the Committee had received sufficient evidence to make a finding with respect to each head of misconduct. With respect to proving that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97, College Counsel submitted that the testimony of Mr. White, as a participant expert, supports a finding that: dismissing students early; allowing [XXX] (the then “unidentified visitor”) onto the School’s premises during school hours; and, engaging in sexual intercourse with the visitor on the School premises prove that the Member failed to maintain the standards of the profession.

College Counsel submitted that the evidence proves that the Member engaged in sexual intercourse with a female visitor, now identified as [XXX], in his office on June 12, 2014 and that this proves that the Member: failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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 engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

Member’s Counsel’s Submissions

With respect to the credibility of the witnesses, Member’s Counsel pointed to perceived inconsistencies between Mr. Lamanna’s testimony and Mr. White’s Preliminary Report regarding the events of June 12, 2014 (see Exhibit 9). Member’s Counsel questioned the accuracy of Mr. Lamanna’s recollections and whether the witness may have been harbouring negative personal feelings towards the Member.

Member’s Counsel stated that the Member had remained very consistent throughout the proceedings in his denial of having had sexual intercourse with a female visitor.

Member’s Counsel reminded the Committee that the burden of proof lies with the College and that it must ensure that the civil standard of the balance of probabilities has been met and that the burden of proof is satisfied with “clear, cogent and convincing evidence.” Member’s Counsel submitted that sufficient doubt exists in this case.

College Counsel’s Reply

College Counsel replied to Member’s Counsel’s submissions. Regarding the issue of perceived discrepancies raised by Member’s Counsel in relation to witness testimony, College Counsel referenced Pitts in which the commonality of failure of recollection is discussed and suggested to the Committee that not much inference should be drawn from minor inconsistencies. Similarly, College Counsel advised that the Member’s consistency in denying the allegations against him is irrelevant. According to College Counsel, the absence of [XXX] at the hearing is the crucial element.

DECISION

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, and the submissions made by the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Igwenagu Raphael Awachie committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions presented in this matter. The Committee first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

Factual Findings

(1) On or about May 9, 2014, the Member dismissed students early from class

The Committee finds it more likely than not that the Member dismissed his students early from class on May 9, 2014, as set out in paragraph 3(a) of the Notice of Hearing. Mr. White, the School’s principal at the time, testified that [XXX] students were in class from 8:25 a.m. to 3:30 p.m. and [XXX] students were in class from 8:25 a.m. to 3:15 p.m. College Counsel presented security footage (Exhibit 5) of the day in question, showing the Member’s students leaving his classroom at approximately 2:33 p.m. The Member corroborated Mr. White’s testimony about the School’s hours and admitted that he dismissed his students approximately 40 minutes early from class on May 9, 2014. The Member testified that he dismissed his students early to allow them to attend their [XXX] rehearsal.

The Committee finds that Mr. White’s testimony about the School’s hours is credible. However, the Committee finds that the Member’s testimony regarding the reason for the early dismissal of his students is also plausible. The Member had taught at the School for over 15 years, therefore his testimony about the School’s culture as a [XXX] school and the corresponding expectation of students to attend [XXX] rehearsal is reasonable and plausible. The Committee therefore finds that while the Member dismissed his students early on May 9, 2014, the early dismissal of his students does not amount to a finding of professional misconduct given the circumstances.

(2) On or about May 9, 2014, the Member allowed an unidentified female visitor to enter the School prior to the end of the school day

The Committee finds it more likely than not that the Member allowed [XXX] to enter the School prior to the end of the school day on May 9, 2014, as set out in paragraph 3(b) of the Notice of Hearing. The Committee received credible evidence from Mr. White and contemporaneous video evidence from the College with respect to the material facts in this matter.

As noted above, Mr. White testified about the School’s hours. Namely, [XXX] students were in class from 8:25 a.m. to 3:30 p.m. and [XXX] students were in class from 8:25 a.m. to 3:15 p.m. Mr. White further testified that the Member’s classroom (the science lab) was located in the [XXX] school building. The security footage (Exhibit 5) on May 9, 2014, showed the Member letting [XXX] in to the [XXX] school building at approximately 3:18 p.m. through one of the School’s back doors. In cross-examination, the Member admitted that he let [XXX] in to the School at 3:18 p.m. and that this was 11 or 12 minutes before the [XXX] school day ended. According to the Member, because the [XXX] day ended at 3:15 p.m., letting [XXX] in at 3:18 p.m. meant that he let her in to the School after school hours. The Committee finds that, based on the evidence presented during the hearing, this aspect of the Member’s testimony is not reasonable. As corroborated through witness testimony and video evidence, the Member’s classroom/office was located in the [XXX] school building and the [XXX] school day did not end until 3:30 p.m. It is therefore not reasonable to conclude that letting a visitor in to the [XXX] school building, through one of the School’s back doors, at 3:18 p.m. could be considered “after school hours.”

As it relates to the School’s visitor policy, Mr. White testified that the School had a very clear visitor policy: specifically, that all visitors were expected to enter through the School’s front door in order to check in with the main office and receive a lanyard that identifies them as a visitor. The Member testified that he was aware of the School’s policy that required visitors to enter through the main doors of the School and sign in with the office during school hours. However, the Member stated that he was not aware of any visitor policy in place for visitors after school hours. The Committee finds that the Member’s testimony about his knowledge of the School’s visitor’s policy is not credible because his testimony is inconsistent and is not reasonable. The Member’s testimony is externally inconsistent with the testimony of Mr. White. Further, the Committee finds that it is not reasonable to conclude that the Member had knowledge of the School’s visitor policy during school hours and at the same time had no common sense knowledge of the visitor policy regarding after-school hours.

Accordingly, the Committee finds that the College has proven on a balance of probabilities that, on May 9, 2014, the Member let [XXX] onto the School’s premises prior to the end of the school day.

(3) On or about June 12, 2014, the Member engaged in sexual activity in his school office with an unidentified female visitor

The Committee finds it more likely than not that the Member engaged in sexual activity in his school office with [XXX] on June 12, 2014, as set out in paragraph 4 of the Notice of Hearing. The Committee received credible evidence from Mr. Lamanna and contemporaneous documentary and video evidence from the College with respect to the material facts in this matter.

As noted above, Mr. Lamanna testified that he saw the Member and [XXX] (the previously “unidentified female”) engaging in sexual activity on June 12, 2014. Mr. Lamanna explained that he entered the science lab on the evening in question to clean the classroom when he saw a foot and leg through the window of the teacher’s office. He approached the teacher’s office and saw, through the window, the Member and [XXX] engaging in sexual intercourse. Mr. Lamanna testified that he left the science lab immediately after witnessing the sexual encounter and did not finish cleaning the science lab.

The Committee finds that Mr. Lamanna was a very credible witness. First, Mr. Lamanna had the opportunity to observe the Member’s sexual encounter with [XXX]. He was about four feet away from the window of the Member’s office when he observed the impugned event. The dividing wall between the science lab and the Member’s office was no taller than Mr. Lamanna’s abdomen so it is clear that Mr. Lamanna could see over it. Finally, the Member’s office door contained a vertical window at least four feet in length that was not obstructed in any way. The photos of the science lab (Exhibit 13) support Mr. Lamanna’s testimony that he was physically able to observe what he described.

Second, Mr. Lamanna was able to clearly recall the sexual event in question with no hesitation. He testified that he was “shocked” by the events he witnessed and the Committee finds that this strengthens Mr. Lamanna’s ability to recall the event, as it was a dramatic event that makes it more likely that he would remember it clearly. Further, Mr. Lamanna was consistent and clear in his testimony during both direct and cross-examination.

Third, Mr. Lamanna has no interest in the outcome of the hearing. This matter is a regulatory matter and Mr. Lamanna does not stand to gain any benefit from testifying against the Member as to what he observed on June 12, 2014. The Committee considered the submissions of Member Counsel that Mr. Lamanna’s testimony was not credible because the motive for his testimony was revenge (the “revenge theory”). As noted above, Member’s Counsel relied on four incidents to help support the revenge theory: the unclean bathroom incident that took place in late 2011; the sleeping in the staff room incident that took place in April of 2012; the unplugged fridge incident in May of 2012; and the boxes falling off the shelf incident that took place in November of 2012. However, based on the evidence given during the hearing, the Committee rejects the suggestion that Mr. Lamanna’s testimony was based on revenge. The Committee finds the revenge theory to be unreasonable and believes that the aforementioned interactions between the Member and Mr. Lamanna are inconsequential work events. No reasonable person would “go after” a colleague and fabricate a serious sexual allegation, years after the supposed confrontations, on the basis of such minor quarrels. Further, the last “incident” between the Member and Mr. Lamanna took place in November of 2012 and there were no further incidents between then and June of 2014. The Committee finds that this year and a half period between the events involving the Member and Mr. Lamanna further supports the notion that there was no revenge motive on the part of Mr. Lamanna.

Fourth, Mr. Lamanna’s evidence was reasonable and not overstated or exaggerated. Mr. Lamanna presented as an honest and trustworthy witness. His testimony about the physical position of the Member and [XXX] during the sexual activity was reasonable.

Finally, Mr. Lamanna’s evidence was generally consistent, both internally and externally. The Committee recognizes that Mr. Lamanna’s testimony contained some minor internal inconsistencies. Specifically, Mr. Lamanna testified that he sent a text message to Mr. Kovacs after witnessing the events on June 12, 2014 but, in his written statement (Exhibit 8), he stated that he called (rather than emailed) Mr. Kovacs. Further, Mr. White’s report (Exhibit 9) stated that Mr. Lamanna advised him that he had seen [XXX] twice within the last week. However, Mr. Lamanna testified that he did not see [XXX] twice within the previous week at the School. He stated that he had told Mr. White he had seen the Member with women before and that the error in frequency in the report must have been a misunderstanding. Despite this, the Committee finds that these minor inconsistencies do not go to the core of the case and do not negatively affect the credibility of Mr. Lamanna’s testimony.

Moreover, the Committee finds Mr. Lamanna’s testimony about the event in question on June 12, 2014 to be externally consistent. The security camera footage (Exhibit 5) strongly corroborates Mr. Lamanna’s testimony. The video footage from June 12, 2014 shows the Member and [XXX] entering the science lab together at around 4:12 p.m. The footage also shows Mr. Lamanna entering the science lab at approximately 5:15 p.m., exiting approximately 27 seconds later, and walking towards the main office. Further, Mr. White’s handwritten notes (Exhibit 4) and Preliminary Report (Exhibit 9) support Mr. Lamanna’s testimony. Mr. White’s notes state that, at 6:01 p.m. on June 12, 2014, Mr. Kovacs called him and explained that Mr. Lamanna had called to report that he saw the Member and [XXX] engaging in sexual intercourse in room [XXX]. The notes further state that after witnessing the event in question, Mr. Lamanna spoke with both Ms. De Cesare and his supervisor, Vince Di Prospero, and explained what he had seen. The Preliminary Report echoes Mr. White’s handwritten notes, and outlines the relevant time stamps from the School’s security footage (Exhibit 5).

As stated above, the Member denies engaging in sexual activity with [XXX] in his school office on June 12, 2014. The Member testified that [XXX] sat in his office doing her own work and/or reading while he was “hurrying” to finish preparing exam papers and marking students’ work. He stated that the purpose of [XXX]’s visit was to do him a favour and give him a lift home. The Committee finds that the Member’s testimony was not believable. In the Committee’s opinion the Member’s evidence was neither clear nor cogent; it simply did not have the ring of truth to it.

First, the Member has a clear interest in the outcome of the hearing. A finding that the Member engaged in sexual activity with [XXX] would reasonably be seen to negatively affect the Member’s professional and personal life. The Member stands to face a professional penalty and the Member’s marital relationship and reputation in the Catholic community could be negatively affected. He also agreed that it would negatively affect his marriage.

Second, the Committee finds that the Member’s testimony regarding the events of June 12, 2014 was neither reasonable nor plausible. The Member did not disclose [XXX]’s identity to his Board or to the College prior to the hearing. Instead, [XXX] identity was only disclosed by the Member during his cross-examination when the Committee ordered him to disclose it. The Committee believes that if the Member did not engage in any sexual activity with [XXX] on June 12, 2014, then disclosing [XXX] identity would not have been a contentious issue and he would have wanted her to testify on his behalf to corroborate his version of events. Additionally, the Committee finds that there was insufficient evidence to support the Member’s position and it draws an adverse inference against the Member for failing to call [XXX] as a witness (see below for further reasons regarding this adverse inference).

Finally, the Member’s testimony regarding the events on the evening of June 12, 2014 was externally inconsistent with other evidence. The Member’s testimony completely contradicts the testimony of Mr. Lamanna, which is supported to a large extent by the video footage. For the reasons noted above, the Committee finds Mr. Lamanna’s evidence regarding the events of June 12, 2014 to be more credible than the Member’s testimony. Further, in the Member’s written response to the Board (Exhibit 15) and during his oral testimony, he stated that during the time [XXX] was visiting he prepared his exam papers and went back and forth between his office (room [XXX]) and the main office on a few occasions. However, the video footage (Exhibit 5) from that evening directly contradicts this. The video footage shows the Member and [XXX] entering the science lab together at approximately 4:12 p.m. and leaving the School together at approximately 5:40 p.m. The footage does not show the Member leaving the science lab at any point between that hour and a half. The Committee finds that if the Member’s testimony were true, the video footage would have corroborated his evidence and shown him walking back and forth between the science lab and the main office.

The Committee recognizes that the Member’s testimony was consistent with his previous written response to the Board (Exhibit 15). Specifically, the Member stated in his written response that [XXX] visited on June 12, 2014 for the purpose of offering him a lift home and that she was waiting for him in his office while he was completing his work for the evening. The Member stated that he heard the science lab door open and that he opened his office door to check and see who it was. He said that after he saw Mr. Lamanna in the science lab he closed the office door and continued to finish his work. The Member’s oral testimony was consistent with his written statement to the Board (Exhibit 15). However, the Committee finds that the Member’s statement, like his oral testimony, is not reasonable. Further, the Committee gives more weight to the number and importance of the external inconsistencies in the Member’s evidence than they do to the fact that the Member has consistently told the same story about what happened on June 12, 2014.

Adverse Inference against the Member

The College asked the Committee to draw an adverse inference against the Member for failing to call [XXX]to testify on his behalf. In civil cases, an adverse inference can be drawn against a party that fails to call a material witness:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.¹

The Committee considered the context of [XXX] role in the impugned sexual activity on balance with the rest of the evidence presented, and draws an adverse inference against the Member for failing to call [XXX]as a witness. First, [XXX] is the only person, besides the Member and Mr. Lamanna, who could testify about what took place in the Member’s office on June 12, 2014. According to the Member, [XXX] sat in his office for approximately an hour and a half while he finished his work so that she could give him a lift home. Further, the Member admitted during cross-examination that [XXX] would have knowledge of the facts surrounding the events on June 12, 2014. Second, not only could [XXX] be assumed to be willing to help the Member because they have been family friends for over 20 years, but the Member admitted on cross-examination that [XXX] would be willing to assist him if he asked her to. Finally, the Member has “exclusive control” over [XXX]. Only the Member knew [XXX] identity prior to the hearing (and indeed until the second day of the hearing). The Committee therefore draws the inference that if [XXX] were to testify, her evidence regarding the events that transpired on June 12, 2014, would be contrary to the Member’s evidence.

Legal Conclusions

The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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 he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

1. The Member contravened Ontario Regulation 437/97, subsection 1(5)

The Member failed to maintain the standards of the profession. First, he failed to meet the standards of the profession when he improperly allowed [XXX] to enter the School premises during school hours on May 9, 2014. Second, the Member failed to meet the standards of the profession when he engaged in sexual activity with [XXX] in his office at the School on June 12, 2014. The Committee received expert evidence establishing the standards of the profession from Mr. White, the School’s principal at the time of the events in question, who was qualified as a participant expert. Mr. White referred to written standards of the College established in The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession (Exhibit 11), and to the Board’s Code of Conduct (Exhibit 12). He testified that these documents established the standards of the profession and he described during his testimony why and how he believed that the Member did not meet these standards.

In particular, the Committee finds that the Member failed to maintain the Ethical Standards for the Teaching Profession (Exhibit 11). Mr. White opined that the Member’s decision to engage in sexual activity with [XXX] in his office at the School was not ethically sound and that it demonstrated a lack of respect for the School’s environment. In his opinion, the Member’s actions demonstrated a lack of respect for school property and a lack of respect for the colleague who shares the Member’s office. The Committee agrees. Teachers are expected to uphold the honour and dignity of the teaching profession and the Member’s actions on June 12, 2014 fell well short of meeting this expectation.

The Committee further finds that the Member failed to maintain the Standards of Practice for the Teaching Profession (Exhibit 11), which Mr. White confirmed represent the standards of the profession. The Committee agrees with Mr. White’s opinion that the Member did not demonstrate adequate leadership in his learning community. First, the Committee finds that the Member did not promote a safe learning environment when he allowed [XXX] to enter the School’s premises, during school hours, in a way that violated the School’s visitor policy. School policies exist for the purpose of promoting student safety and well-being. When the Member violated the School’s visitor policy, he put students at risk. Second, Members of the teaching profession are expected to foster leadership in learning communities by maintaining and upholding the principles of ethical standards. The Committee agrees with Mr. White’s overall assessment that the Member breached the standard of “leadership in learning communities” by not promoting a safe environment for students and by not upholding the School’s principles of ethical standards.

Finally, the Board’s Code of Conduct (Exhibit 12) outlines detailed standards of behaviour expected of all members of the School’s community. Mr. White opined that this is another professional standard the Member failed to meet. The Committee agrees. First, members of the School community are expected to uphold “respect, civility and responsible citizenship” whether on school property or in other circumstances that could have an impact on school climate. Mr. White opined that the Member failed to meet this standard by engaging in sexual activity with [XXX] in his school office. Mr. White stated that since the proceedings at the College are public, the Member’s actions negatively affected the School climate. For example, the Notice of Hearing was circulated amongst the students at the School and the details in the Notice of Hearing had an impact on the students. Second, members of the School community are expected to model respectful and responsible behaviour. Improperly allowing [XXX] to enter the School premises during school hours demonstrates irresponsible behaviour on the Member’s part. Further, by engaging in sexual activity with [XXX] in his school office, the Member failed to be a role model for “respectful and responsible behaviour.”

The Committee takes note that Member’s Counsel submitted that if the Committee were to find as fact that the Member engaged in sexual activity with [XXX] in his office at the School, this would amount to a failure to maintain the standards and would be misconduct under Ontario Regulation 437/97, subsection 1(5).

The Committee concludes that the Member did not maintain the standards of the profession when he violated the School’s visitor policy on May 9, 2014, and when he engaged in sexual activity in his school office on June 12, 2014.

While the Committee finds that the Member dismissed his students early from class on May 9, 2014, the early dismissal of his students does not amount to a breach of the standards of the profession in the circumstances. The Member testified that since the School is a [XXX] school, it is commonplace, and at times expected, for teachers to dismiss students early to allow them to participate in [XXX] related activities. The Committee accepts this aspect of the Member’s testimony. While the College may have wanted the Committee to draw the inference that the Member dismissed the students early for the purposes of meeting with [XXX], there is insufficient evidence to meet the burden of proof in that regard. There was no evidence presented that there was no [XXX] rehearsal taking place that day. Further, no evidence was presented regarding the School’s protocol for dismissing students early from class. In fact, Mr. White’s evidence was that dismissing students early could be appropriate or inappropriate depending on the circumstances. The Committee finds that since there was an absence of any evidence of a School policy to the contrary, dismissing students early to participate in [XXX] rehearsal does not amount to a breach of the standards of the profession in this specific case.

2. The Member contravened Ontario Regulation 437/97, subsection 1(15)

The Committee finds that the Member failed to comply with subsection 264(1) of the Education Act, which sets out the duties of teachers. Specifically, the Member failed to comply with subsection (c), the provision that requires teachers ‘”to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality […].”² The Member’s conduct was in stark contradiction to these expectations. He engaged in sexual activity with [XXX] in his school office. In doing so, he failed to model respect for the Christian principles of morality and fidelity to marriage. The Member’s misconduct also eroded his students’ trust and confidence in teachers and he tarnished the reputation of the profession.

3. The Member contravened Ontario Regulation 437/97, subsection 1(18)

The Committee finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Member breached School policy when he let [XXX] in through a back door during school hours and in doing so put the safety and well-being of the School’s students at risk. Improperly allowing [XXX] to enter the School’s premises on May 9, 2014 during school hours was unprofessional on the part of the Member and violated the trust that parents, students, and colleagues placed in him. Further, the Member’s sexual activity with [XXX]on June 12, 2014 would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Committee was struck by the Member’s poor professional judgment in this regard and concludes that engaging in sexual activity on the School’s premises clearly amounts to “disgraceful, dishonourable, or unprofessional” conduct.

4. The Member contravened Ontario Regulation 437/97, subsection 1(19)

The Member engaged in conduct unbecoming a member of the teaching profession, for similar reasons to those set out directly above in relation to subsection 1(18) of Ontario Regulation 437/97. By breaching the School policy and improperly allowing [XXX] to enter the School’s premises during school hours, and by engaging in sexual activity with [XXX] in his school office, the Member engaged in conduct unbecoming a member. This type of behaviour brings disrepute to the entire profession.

The Committee notes the distinction between subsection 1(18) and 1(19) of Ontario Regulation 437/97. Subsection 1(18) typically involves conduct that occurs during a teacher’s professional life (while he or she is “on duty”), whereas subsection 1(19) often involves conduct that occurs while a teacher is “off duty.” In this case, the Member’s inappropriate “on duty” conduct occurred when he violated School policy and allowed [XXX] to inappropriately enter the School during school hours, while the Member’s inappropriate “off duty” conduct occurred when he engaged in sexual activity with [XXX] after school hours in his office at the School. Accordingly, it is appropriate in this case to find that the member contravened subsection 1(19) of Ontario Regulation 437/97, in addition to subsection 1(18). The Member’s conduct was unbecoming by any reasonable interpretation.

PENALTY

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

Date: March 26, 2018

Tom Potter Chair, Discipline Panel

Irene Dembek, OCT Member, Discipline Panel

Stéphane Vallée, OCT Member, Discipline Panel

Footnotes

1. 1Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd edition), 2009. Lexis Nexis Canada Inc.: Markham, Ontario.
2. 2Education Act, R.S.O 1990, c. E. 2, subsection 264(1)(c).