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 Bergin 2018 ONOCT 29

Date: 2018-06-18

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

Stephen John Bergin, OCT, a member of the Ontario College of Teachers.

PANEL: Colleen Landers, Chair

Jean-Luc Bernard, OCT

Wes Vickers, OCT

BETWEEN: ) Christine Wadsworth,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Eleanor Enniss,

) Law Clerk

– and – )

STEPHEN JOHN BERGIN ) Kirsty Niglas-Collins,

(CERTIFICATE #184855) ) KNC Law, ) for Stephen John Bergin

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: June 18, 2018

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 18, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated February 7, 2018 (Exhibit 1) was served on Stephen John Bergin (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 18, 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 Notice of Hearing are as follows:

IT IS ALLEGED that Stephen John Bergin 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 Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(c) 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);

(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

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

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. Stephen John Bergin is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. At all material times, Co-worker 1 was a female [XXX] at the School.

4. On March 2, 2017, around 3:35 p.m., Co-worker 1 was [XXX]in the [XXX] office. The Member was in the office and began chatting with Co-worker 1. There was some discussion about whether Co-worker 1 could do the tango.

5. The Member asked Co-worker 1 to follow him into a windowless storage room, and she did so.

6. Once in the room, the Member placed one hand on Co-worker 1’s shoulder, and the other hand on Co-worker 1’s buttocks, without her consent. Co-worker 1 said “no” and the Member removed his hands and apologized to Co-worker 1.

7. Following the March 2, 2017 incident, the Board conducted an investigation. On June 12, 2017, the Member received a letter of discipline and a 30-day suspension of his employment. Attached hereto and marked as Exhibit “B” is a copy of the June 12, 2017 letter of discipline from the Board to the Member.

8. The Member’s suspension by the Board was later reduced to 21 days.

GUILTY PLEA

9. By this document,¹ the Member admits the truth of the facts and exhibits referred to above (the “Admitted Facts”).

10. 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(14), 1(15), 1(18) and 1(19).

11. By this document the Member states that:

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

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

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

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

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

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

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

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on June 18, 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(14), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 8 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(14), 1(15), 1(18) and 1(19).

Paragraphs 5-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 5-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14).

Paragraphs 5-7 of the Agreed Statement of Facts and Guilty Plea demonstrate 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).

Paragraphs 5-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

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 the Member to 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 to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.

3. direct 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) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries, subject to the following conditions;

(i) the Member will provide to a course provider approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

PENALTY DECISION

In an oral decision rendered on June 18, 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. The penalty proposed by the parties is also within a reasonable range, based on the following analogous case presented by College Counsel: Ontario College of Teachers v. Fair, 2016 ONOCT 79.

The Committee finds that the Member’s unprofessional and inappropriate conduct warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries with his co-worker when he asked her to follow him into a windowless storage room and placed his hands on her shoulder and buttocks without her consent. It is unacceptable for members of the profession to make unwanted advances or physical contact with their co-workers. Members of the profession are expected to interact respectfully and professionally with their colleagues at all times. 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 suspending the Certificate of Qualification and Registration of the Member for a period of two months is proportionate to the misconduct committed by the Member. The duration of the suspension is within a reasonable range based on a similar case before the College’s Discipline Committee, as submitted by College Counsel. The suspension will serve as a specific deterrent to the Member and should cause him to reflect on the inappropriate nature of his misconduct. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

The Committee finds that the course of instruction regarding professional boundaries will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with co-workers.

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

Date: June 18, 2018

Colleen Landers

Chair, Discipline Panel

______________________________ Jean-Luc Bernard, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel

Footnotes

1. 1For the purposes of paragraphs 9 and 11, this “document” refers to the parties’ Agreed Statement of Facts and Guilty Plea dated May 22, 2018.