Discipline Committee of the Ontario College of Teachers
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against Nancy Fernandes, a member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov, Chair Claudia Patenaude-Daniels, OCT Wes Vickers, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Christine Lonsdale, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela Spano, Law Clerk
-and-
NANCY FERNANDES (CERTIFICATE # 203966) Austin Fernandes, for Nancy Fernandes
Rebecca Durcan and Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: August 30-31, and December 12, 2017
DECISION ON FINDING AND REASONS FOR DECISION
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 30, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated March 12, 2013, was served on Nancy Fernandes (the “Member”) requesting her presence on March 18, 2013 to set a date for hearing, and specifying the allegations. The hearing was subsequently set to, and did, commence on August 30, 2017. The hearing continued on August 31, 2017 and December 12, 2017.
The Member was not in attendance at the hearing and did not have legal representation. She was, however, represented by her spouse, Mr. Austin Fernandes (the “Member’s Representative”), who is not a lawyer.
Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 2) sworn on August 28, 2017, to prove that the Member had been informed of the allegations against her, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Spano, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. In this affidavit, Ms. Spano states that Counsel for the College was advised by Member’s Counsel that she was no longer counsel of record. Following this, Counsel for the College wrote to the Member indicating the College’s intention to proceed in this matter and asking that the Member advise if new counsel had been retained. The Member did not respond to the College’s request. The Member was served with a Disclosure Brief, Supplementary Disclosure Brief, a list of witnesses the College intended to call at the hearing on the merits, additional materials, and advice of what the College would be seeking with respect to penalty if a finding of professional conduct was made. Based on this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought. The Member did not appear for her hearing and the Committee therefore heard this matter in the absence of the Member, but in the presence of her Representative.
At the outset of the hearing on August 30, 2017, the Member’s Representative made an oral motion without notice to dismiss the proceedings for delay, which the Committee dismissed. He then made an oral motion for adjournment, which the Committee also dismissed.1 The College then presented its case and introduced its evidence. Towards the end the day on August 30, 2017, the Member’s Representative brought a second motion for adjournment, which the Committee granted on August 31, 2017.2 The hearing was adjourned until December 12, 2017, to allow the Member’s Representative sufficient time to attempt to secure legal counsel for the Member or to better prepare for this case.
PUBLICATION BAN
College Counsel requested that the Committee order a publication ban to protect the identity of any students who were witnesses in the hearing or who were the subject of evidence in the hearing. Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), the Committee ordered that no person shall publish the identity of, or any information that could disclose the identity of, any student involved in this matter.
OVERVIEW
There are two allegations in this matter. The Member is alleged to have called Student 1 by his last name, as opposed to his first name, and to have treated him differently based on her opinion of him. Further, the Member is alleged to have commented on the same student’s sexual orientation in front of other students.
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) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) she abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(e) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(f) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Nancy Fernandes is a member of the College in good standing.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School.
On June 7, 2010, the Board notified the Member that the Human Rights Office of the Board received a formal complaint against the Member by the mother of Student 1, a male student at the School.
An investigation by the Board substantiated that the Member:
(a) called Student 1 by his last name and treated Student 1 differently from other students based on the Member’s opinion of him; and,
(b) spoke about Student 1’s sexual orientation with other students.
THE MEMBER’S PLEA
The Member’s Representative entered a plea of not guilty on the Member’s behalf and the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.
THE EVIDENCE
The College presented oral and documentary evidence in order to prove the allegations set out in the Notice of Hearing (Exhibit 1). Relevant portions of this evidence will be set out in greater detail, as needed, in the Committee’s reasons for decision below. The following is a brief summary of the College’s evidence
Oral Evidence
The College sought and the Committee ordered that the witnesses in this matter be excluded from the hearing until called to give evidence, in accordance with Rule 13.12 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).
The College called four witnesses: (1) Student 1 (as he is referred to in the Notice of Hearing); (2) [XXX] (Student 1’s mother); (3) [XXX] (Student 1’s classmate at the time of the events in question, the “Classmate”); and (4) Principal Bev Ohashi (“Principal Ohashi”), the School principal at the time of the events in question.
For the reasons that will be set out in greater detail below, the Committee found that the four witnesses’ evidence was credible and consistent with respect to all material facts. Although there were minor inconsistencies between their accounts (e.g. the witnesses recalled the details of the events surrounding particular 4(a), as alleged in the Notice of Hearing, slightly differently) the Committee does not find that these types of minor discrepancies are material or diminished the witnesses’ credibility about the key facts at issue.
The Member chose not to participate in the hearing and her representative did not present any oral evidence in her defence.
Student 1’s Testimony
Student 1 was [XXX] years old at the time of the hearing. At the time of the events in question, Student 1 was approximately [XXX] years old and the Member was his grade [XXX] [XXX] teacher at the School.
Student 1 gave evidence about two incidents that he claimed took place between him and the Member. Namely, he testified about the Member calling him by his last name and how this conduct made him feel like there was a degree of separation between himself and his peers. Further, Student 1 testified about the Member commenting on his sexuality in the presence of his peers. He testified about the significant impact this incident had on him. He explained that he was shocked because he was not “out of the closet yet”; that he was worried and afraid of the implications of the Member’s comment and how being “found out” would affect his relationship with his peers at School; and that it was difficult to discuss the incident with his mother because he feared that she would assume that he was homosexual based on the Member’s comment.
Student 1 further testified about reporting the incidents to his mother, as well as making a formal complaint to the Board investigator, Christopher Beserve (“Mr. Beserve”). He explained that he only reported the incidents following the Member’s comments about his sexuality because the other incidents between him and the Member were “easier to brush off as just two people who did not get along.”
Student 1’s Mother’s Testimony
Student 1’s mother testified that she learned of the incidents involving Student 1 and the Member, as she was the first person to whom Student 1 disclosed these incidents. She also testified about her firsthand observations of the impact the Member’s conduct had on Student 1’s physical and emotional well-being.
Student 1’s mother testified that she learned about the two incidents involving the Member and her son a few days after the Member commented on his sexuality in the presence of his peer. After learning about these incidents, Student 1’s mother contacted the Member, and reported the incidents to the acting vice-principal at the time, Suelyn Cheong (“Ms. Cheong”). She also testified about requesting a formal investigation into the incidents and the various forms of contact she had with Ms. Cheong and Mr. Beserve before, during, and after the formal investigation.
Student 1’s Classmate’s Testimony
The Classmate was [XXX] years old at the time of the hearing. At the time of the events in question, he was a [XXX] or [XXX]-year-old Grade [XXX] student at the School. He was part of the [XXX] program, which was a special [XXX]stream at the School.
The Classmate testified that he knew Student 1 from class because Student 1 was also part of the [XXX] program. He testified that the Member was his Grade [XXX] [XXX] teacher.
The Classmate testified about the relationship between Student 1 and the Member in general terms. He also testified about witnessing the Member call Student 1 by his last name, and witnessing the Member comment on Student 1’s sexuality in the presence of other students.
Principal Ohashi’s Testimony, Participant Expert
Principal Ohashi was the Member’s principal at the time of the events in question. At the time of the hearing, Principal Ohashi was retired. Principal Ohashi testified about her experience as an educator and administrator, her various qualifications and achievements, and the education related work she has continued to be involved in since retirement.
Principal Ohashi testified about her interactions with Member, prior to the events in question. She explained that, as principal, she was responsible for managing teacher’s performance issues. Principal Ohashi testified about supervising the Member and working with her on multiple occasions to address concerns that students and parents had made. She explained that she had many conversations with the Member about how to be more effective in the classroom and how to have more successful interactions with students, parents, and staff.
Principal Ohashi testified about how she learned of the incidents involving Student 1 and the Member, and about her meeting with Ms. Cheong, Student 1 and Student 1’s mother. She explained that it was her duty to notify the superintendent regarding the events in question, and that to her knowledge Mr. Beserve had conducted the investigation.
In addition to providing factual evidence, the College sought to qualify Principal Ohashi as a participant expert regarding teacher behaviour in the classroom. The Member’s Representative did not oppose College Counsel’s request. The Committee qualified Principal Ohashi as a participant expert in this regard for the following reasons.
In Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), the Ontario Court of Appeal defines participant experts as “witnesses who form opinions based on their participation in the underlying events rather than because they were engaged by a party to the litigation to form an opinion” (Westerhof at paragraph 6). The Ontario Court of Appeal expands on this concept at paragraphs 60 and 61 of Westerhof where it states that:
a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents […] where
the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
Participant experts can give evidence related to both their observations of the underlying facts and they may give opinion evidence admissible for its truth (see Westerhof at paragraph 61 – emphasis in original).
The Committee finds that Principal Ohashi meets the criteria of a participant expert set out above. She is an experienced educator and administrator. Principal Ohashi taught in the classroom for approximately 15 years, worked as a vice-principal for six years, and as a principal for approximately 13 years. She was briefly involved in the investigation of the Member’s conduct and formed an opinion as to whether or not the Member met the standards of the teaching profession. The Committee therefore qualified Principal Ohashi as a participant expert.
Documentary Evidence
In addition to the oral evidence presented by the College, the Committee also admitted the following documents into evidence, on the request of College Counsel:
the Affidavit of Daniela Spano, sworn August 28, 2017 (Exhibit 2), which outlined College Counsel’s communication with the Member, including: notice of the date of the hearing; initial and supplementary disclosure briefs; a list of witnesses; and notice with respect to the penalty being sought;
the Registered Member Information of the Member (Exhibit 3);
the Formal Complaint filed by Student 1 to the Board Investigator, Mr. Beserve, with attachments (Exhibit 4);
the recording of a voicemail left by the Member at Student 1’s home (Exhibit 5) and a transcription of this voicemail (Exhibit 6);
the letter dated May 20, 2010 from Student 1’s mother to vice-principal Suelyn Cheong, outlining her complaints about the Member on behalf of her son (Student 1) (Exhibit 7);
the letter dated May 21, 2010 from Student 1’s mother to vice-principal Suelyn Cheong, regarding a formal request for an investigation into the incidents between Student 1 and the Member (Exhibit 8);
The Final Investigation Report of the Board Investigator (Mr. Beserve), regarding the Human Rights Complaint against the Member, dated September 20, 2010 (Exhibit 9);
the Registered Member Information of Principal Ohashi (Exhibit 10);
the Curriculum Vitae of Principal Ohashi (Exhibit 11);
the letter from [XXX]to Principal Ohashi, dated March 28, 2010, containing a complaint about the Member (Exhibit 12);
the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (Exhibit 13);
the Board’s Human Rights Policy (Exhibit 14);
the Board’s Operational Procedure Manual for Human Rights Complaints (Exhibit 15);
the Affidavit of Daniela Spano, dated December 11, 2017, regarding the events that had transpired since the adjournment of the hearing on August 31, 2017, which outlined College Counsel’s various communications with the Member (Exhibit 16); and
a letter from Sue Pferrer, superintendent at the Board, to the Member, dated October 3, 2010, informing her of the result of the Human Rights Investigation and the actions that would be taken as a result (Exhibit 17).
The Committee also admitted a collection of documents into evidence, on request of the Member’s Representative (Exhibit 18), which included:
a printout of the meaning, origin, and popularity of Student 1’s last name from www.babycenter.com;
a printout of the use of Student 1’s last name as a first and last name from www.wikipedia.com;
a letter from Neil Graham, Ministry of Education, Ontario;
a letter from Principal Rosaria De Maro of Dante Alighieri Academy, Toronto;
a letter from Frank Daley, Dean of English and Communications at Seneca College, Toronto;
a letter from Principal Rory M. O’Hara of Marc Garneau Collegiate, Toronto;
a letter from Principal Joseph Molinari of Francis Libermann High School, Toronto;
Teacher Performance Review by Principal Anthony Bellisario, TCDSB;
Letter of Recommendation by Nissim Ezekeil, University of Bombay, India;
a letter to the Member from a student at [XXX]School;
a thank you letter to the Member from a student at [XXX]School;
a copy of Access! Task Force on Access to Professions and Trades in Ontario, 1989;
a copy of emails between [XXX]and [XXX], dated January 8, 2012; and
the Member’s response submitted to Sue Pfeffer, superintendent at the Board, dated September 26, 2010.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel reviewed the relevant evidence with the Committee and submitted that the evidence presented to the Committee proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Committee should find the Member guilty of professional misconduct under each head of misconduct alleged in the Notice of Hearing. With respect to the allegation that the Member breached subsection 1(5) of Ontario Regulation 437/97, College Counsel submitted that Principal Ohashi was qualified as an expert witness and that her testimony, in conjunction with Exhibits 13-15, established that the Member failed to maintain the standards of the profession.
College Counsel further submitted that the particulars alleged in the Notice of Hearing have been established on a balance of probabilities. According to College Counsel, the testimonies of Student 1 and the Classmate, as well as Exhibits 4 and 9 establish that the Member called Student 1 by his last name and treated him differently based on her opinion of him. Similarly, College Counsel submitted that the testimonies of Student 1 and the Classmate, as well as Exhibit 9 establish that the Member spoke about Student 1’s sexuality in the presence of other students.
College Counsel submitted that the evidence of Student 1’s mother helped explain the circumstance surrounding Student 1’s disclosure of the events in question, the investigation that followed this disclosure, and the effect the Member’s actions had on Student 1’s emotional and physical well-being.
College Counsel submitted that the four College witnesses were credible. First, Student 1 was a sincere and understated witness. Second, Student 1’s mother was a reliable witness and was fair in her description of the events in question (e.g., by acknowledging that some good had come out of these events in terms of her son’s growth). Third, the Classmate was a candid witness who testified in a clear and concise manner. The Classmate did not like the Member and was not close with Student 1, but had a clear recollection of the events because he found them to be shocking. Fourth, Principal Ohashi was a reliable expert witness. She showed no animosity towards the Member, gave fair evidence of her brief involvement with the events in question, and provided clear evidence with regard to the Member’s breach of the standards of the profession.
SUBMISSIONS OF THE MEMBER’S REPRESENTATIVE
The Member’s Representative made extensive submissions, but many of these submissions were not grounded in the evidence before the Committee or were not relevant to the allegations set out in the Notice of Hearing. For instance, the Member’s Representative re-argued his concerns regarding the delays in this matter (which the Committee already considered in a series of motions at the beginning of this hearing); he submitted that the Board’s investigation into the events at issue was flawed and that members of the School and Board administration (including Principal Ohashi) did not perform their roles properly or had personal issues with the Member and acted unfairly towards her; and he submitted that students are not blameless in this matter.
With respect to the issues alleged in the Notice of Hearing (which are the only issues to be addressed by the Committee), the Member’s Representative submitted that while the Member called Student 1 by his last name, there was no ill intention behind this. He stated that if Student 1 or his mother had corrected the Member, she would have stopped calling Student 1 by his last name.
The Member’s Representative made no submissions relating to the allegation that the Member spoke about Student 1’s sexual orientation in the presence of other students.
The Member’s Representative concluded his submissions by stressing that the Member was a great teacher and that many of her students liked her.
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 presented by the parties, the 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 the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 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) The Member called Student 1 by his last name, but the College did not prove that the Member treated Student 1 differently from other students based on her opinion of him
It is uncontested that the Member called Student 1 by his last name, instead of by his first name, as alleged at paragraph 4(a) of the Notice of Hearing. The Member’s Representative submitted that this was the case, but that the Member had no ill intentions in referring to Student 1 by his last name. The College submitted that the Member called Student 1 by his last name, and presented oral and documentary evidence to demonstrate that this had the effect of singling him out. The Committee finds that the Member called Student 1 by his last name, but that there is insufficient evidence to prove that the Member treated Student 1 differently from other students based on her opinion of him.
Student 1 testified that the Member referred to him by his last name, and not his first name. The Classmate confirmed this information during his testimony. The Member also admitted that she called Student 1 by his last name, as indicated in the Final Report of the Board Investigation (see Exhibit 9, pages 32-33).
Student 1 felt that the Member’s conduct created “a degree of separation” between himself and his peers because the Member referred to everyone else in the class by their first names. Student 1 testified about a group assignment where the Member referred to him by his last name on the marking rubric while naming his peer by her first name (see Exhibit 4, page 18). This formed part of Student 1’s formal complaint to Mr. Beserve (see Exhibit 4, page 7). However, Student 1 admitted to Mr. Beserve that he did not ask the Member to stop calling him by his last name (see Exhibit 9, page 31). In the Member’s response to the allegations, she stated that she called other students by their last names and that she would have stopped calling Student 1 by his last if he had asked her to (see Exhibit 9, page 32).
The Committee received insufficient evidence to conclude, on a balance of probabilities, that the Member called Student 1 by his last name based on her opinion of him. Although there was evidence that the Member referred to other students by their first names, there was insufficient evidence about the Member’s opinion of Student 1 and whether this formed any role in her calling him by his last name.
The Committee notes that the Classmate testified that he witnessed the Member referring to Student 1 by his last name, which he stated sounded similar to a derogatory term used for those who are homosexual. However, the Committee does not place any weight on this part of the testimony of the Classmate because it was purely speculative. He was not in a position to give an opinion as to the Member’s motive or intention for calling Student 1 by his last name.
The Committee does not find that the Member’s admission that she called Student 1 by his last name is “tantamount to intent”, as Mr. Beserve concluded in his Final Investigation Report (see Exhibit 9, page 33). In the absence of evidence of the Member’s intentions or motivation for calling Student 1 by his last name, there is no evidence to support a conclusion that she was treating him differently based on her opinion of him. The evidence before the Committee does not support such a conclusion.
2) The Member spoke about Student 1’s sexual orientation in the presence of other students
The Committee finds, on a balance of probabilities, that the Member spoke about Student 1’s sexual orientation in the presence of other students, as alleged in paragraph 4(b) of the Notice of Hearing. The Committee received both oral and documentary evidence regarding this incident (the “[XXX] Incident”).
The [XXX] Incident
Student 1 testified that the [XXX] Incident occurred on Monday, May 10, 2010. He stated that on this day, there was a “work period” in the Member’s classroom where some students were working on projects and others were sitting quietly. Student 1 testified that he was reading a book at his desk when he overheard a conversation the Member was having at the front of the classroom with a number of students about [XXX]. The Member talked about [XXX] charm and personality and how she loved to be with many men. Student 1 testified that the Member made eye contact with him and in front of his peers she asked: “Do you also like men [Student 1]?”
The Classmate corroborated the substance of Student 1’s testimony and testified about overhearing the [XXX] Incident. He stated that the Member was having a conversation with some students at the front of the class when he overheard the Member asking Student 1 if he was a homosexual. Student 1’s classmate testified that after the Member’s comment, the looks on the students’ faces in the class were that of “pure shock”. He testified that he felt “bewildered, shocked, and appalled” when he witnessed this incident.
Further, Student 1 and the Classmate’s testimony were consistent with statements taken by Mr. Beserve’s during his investigation. The Final Investigation Report (Exhibit 9) contains statements from three students who witnessed the [XXX] Incident. One student told Mr. Beserve that the Member “…was questioning [Student 1’s] gender…” (Exhibit 9, page 35). A second student said that the Member was “…basically referring to [Student 1] as gay…” (Exhibit 9, page 35). Another student said that the Member was “…implying [Student 1’s] sexual orientation or making comments about it…” (Exhibit 9, page 35). Although the Committee acknowledges that these statements are hearsay, the Committee found that they were reliable because they were consistent in their characterisation of the Member comments as relating to Student 1’s sexual orientation. In addition, the Committee notes that the students were interviewed individually, which adds to the reliability of their statements.
The Events Following the [XXX] Incident
Student 1 testified that, at first, he was “taken aback” by the Member’s comment because he was not yet “out of the closet” and had never spoken about his sexuality before. After the initial feelings of “shock” subsided, Student 1 stated that he began thinking about the implications of the Member’s comment. He testified that he was worried that he was going to be “found out or called out” and that it might affect his relationships with his peers at school. Student 1 also testified that it was difficult to tell his mother about the incident for fear that she would assume that it was an admission of him being “gay”. Student 1 testified that he ultimately told his mother about the [XXX] Incident on Thursday, May 13, 2010, and that she contacted the Member the following day (May 14, 2010). Student 1 testified that he spoke briefly to the Member after his mother contacted her. Student 1 testified further that following his conversation with the Member, the Member left a voicemail on their home phone (see Exhibit 5 for voicemail and Exhibit 6 for transcription of voicemail).
Student 1 testified that on Monday, May 17, 2010, there was another free period in class. He stated that the Member called him to the front of the class and changed his grade to a higher mark on his “Summative” (see Exhibit 4, page 10) and on his “Novel Extension” (see Exhibit 4, page 21). Student 1 testified that this conduct was surprising and that it felt like a “bribe” because, up until then, his relationship with the Member was “cold” and “negative”, and she acted condescendingly towards him. The Classmate also testified about the relationship between Student 1 and the Member, explaining that the Member treated Student 1 “just down right awfully” and in an “unfair and negative way”.
Student 1 testified that he ultimately made a formal complaint following the [XXX] Incident. He stated that while there were other incidents between him and the Member prior to the [XXX] Incident, those incidents were easier to “brush off as just two people who didn’t get along”. Student 1 explained that there was “something different” about the Member making insinuations about his sexuality and that he felt this conduct needed to be addressed formally. Student 1 testified that his complaint (see Exhibit 4) was typed by his mother but included his best efforts to recall the incidents between him and the Member. The complaint outlines various encounters he had with the Member, including (but not limited to) the Member calling him by his last name, the [XXX] Incident, the voicemail left by the Member following the [XXX] Incident, and the Member raising his grades. Student 1 signed the complaint and gave it to Mr. Beserve who was in charge of the investigation. Student 1 testified that it was Mr. Beserve’s role to determine what had occurred and whether or not any of the evidence provided by him was substantiated enough to constitute a formal complaint against the Member. Student 1 testified that the [XXX] Incident was substantiated by Mr. Beserve.
Student 1’s mother corroborated her son’s testimony in this regard. She testified that the she was made aware of the [XXX] Incident on Thursday, May 13, 2010. She stated that Student 1 told her about two major concerns that Thursday, namely that the Member referred to him by his last name and that the Member stated [XXX] liked men like you like men [Student 1]”. Student 1’s mother testified that she was very upset for her son because the [XXX] Incident made him feel like he was shamed in front of his peers. She stated that she contacted the Member the following day to discuss what had occurred. According to Student 1’s mother, the Member left her a voicemail on Friday, May 14, 2010 (see Exhibit 5), and she was upset that the Member did not have time to talk to her personally. Student 1’s mother testified that she was also upset by the language the Member used in the voicemail. Specifically, she was upset when the Member stated that “…she hoped [Student 1] could find a teacher that could deal with him with all of his inequities…”
Student 1’s mother further testified that she met with the vice-principal, Ms. Cheong, on the Monday following the [XXX] Incident and that Student 1 was present during this meeting. Following the meeting with Ms. Cheong, Student 1’s mother typed up a document (see Exhibit 7) summarizing her concerns about the Member’s conduct towards her son (Student 1) and sent it to Ms. Cheong. She also requested that Ms. Cheong (see Exhibit 8) initiate a formal investigation into the matter, because Student 1 felt like he was being “bribed” by the Member after the [XXX] Incident (when the Member increased his grades on assignments).
A formal investigation was conducted and the evidence gathered during this investigation supported Student 1’s complaint that the Member discriminated against or harassed Student 1 based on his sexual orientation (see Exhibit 9).
Conclusion
In light of this evidence, the Committee finds, on a balance of probabilities, that the Member spoke about Student 1’s sexual orientation in the presence of other students. In particular, the Committee finds that in the course of talking about [XXX], the Member asked Student 1 “do you also like men [Student 1]?” and that this was done in front of other students. The Committee finds that the College’s three witnesses were credible. First, Student 1 was a sincere and understated witness. He did not display any ill motive in filing his complaint or in providing his evidence to the Committee. He explained that he had not “come out” at the time of the [XXX] Incident and testified about how the Member’s conduct negatively affected him. Second, the Classmate was a clear and candid witness. His testimony was also concise and he had a clear memory of the events in questions because he found them to be “shocking”. While Student 1 and his classmate used different words when they described what the Member said during the [XXX] Incident, the Committee does not find that this minor inconsistency affects the credibility of the witnesses because the substance of their testimonies was consistent, that is that the Member commented about Student 1’s sexual orientation in front of other students. Further, the testimonies of Student 1 and the Classmate were not only externally consistent with each other, but were also consistent with the statements of other students who witnessed the [XXX] Incident (Exhibit 9, pages 34-35). Moreover, Student 1’s mother presented as a fair and reliable witness. While she did not witness the events, she testified about her son’s disclosure of the events to her and about how the Member’s conduct negatively affected her son both physically and emotionally.
Although not required to do so, the Member’s Representative presented no direct evidence on the Member’s behalf to contradict the College’s evidence. The Committee therefore received uncontradicted, first-hand, evidence from Student 1 and the Classmate that the Member spoke about Student 1’s sexual orientation in front of other students. Their evidence was supported by contemporaneous documentary evidence. The Committee also received uncontradicted evidence from Student 1’s mother about how Student 1 reported this event to her and the events following the incident. The Committee finds that it is more likely than not that the Member spoke about Student 1’s sexual orientation in the presence of other students, as alleged in paragraph 4(b) of the Notice of Hearing.
Legal Conclusions
The Committee finds that the Member’s conduct set out above constitutes professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); she abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7); she abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); she failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); she 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, she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
1) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)
The Committee finds that the Member failed to maintain the standards of the profession. The Committee received expert evidence establishing the standards of the profession from Principal Ohashi who was qualified as a participant expert regarding teacher behaviour in the classroom. Principal Ohashi testified about the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (Exhibit 13) and the Toronto District School Board Human Rights Statement (Exhibit 14). She testified that these documents established the standards of the profession and opined that the Member did not meet these standards. The Committee finds that Principal Ohashi presented as a reliable expert witness. She had no animosity towards the Member, gave fair evidence of her brief involvement with the events in question, and clear evidence with regard to the Member’s breach of the standards of the profession.
Principal Ohashi stated that the Member did not adhere to the “Duties and Responsibilities” (see Exhibit 14) of a teacher because she did not act as a positive role model and she did not address the fact that Student 1 felt he was treated differently and discriminated against. Principal Ohashi testified that it was inappropriate to ask Student 1 about his sexual orientation. She stated that it was similarly inappropriate for the Member to insinuate that Student 1 was homosexual. The Committee agrees. Principal Ohashi testified further that under the Operational Procedure Manual for Human Rights Cases (Exhibit 15) sexual orientation is a prohibited ground of discrimination and that homophobic behaviour is an example of discrimination and harassment under this policy. She opined that the Member exhibited homophobic behaviour during the [XXX] Incident. The Committee agrees.
The Committee finds that the Member failed to maintain The Ethical Standards for the Profession (Exhibit 13). When the Member spoke about Student 1’s sexual orientation in the presence of other students, the Member demonstrated a lack of respect, care, and trust. The Member demonstrated a lack of respect by failing to act as a positive role model. The Member demonstrated a lack of care by showing a lack of commitment to Student 1’s well-being. Further, the Member’s misconduct eroded Student 1 and his mother’s trust in her and the teaching profession as a whole. Teachers are expected to foster the public trust and confidence in the profession; when the Member spoke about Student 1’s sexual orientation in the presence of other students it had the opposite effect.
The Committee further finds that the Member failed to maintain The Standards of Practice for the Teaching Profession (Exhibit 13), by failing to demonstrate a commitment to students and student learning. When the Member spoke about Student 1’s sexual orientation in the presence of other students, she failed to treat Student 1 “equitably and with respect”. The Committee therefore concludes that the Member did not maintain the standards of the profession with respect to speaking about Student 1’s sexual orientation in the presence of other students.
2) The Member abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7)
The Committee finds that the Member abused Student 1 verbally when she asked: “do you also like men [Student 1]?” By making this comment the Member made Student 1 feel worried that he was going to be “found out or called out” and that it might affect his relationships with his peers at school. Members of the teaching profession are expected to provide students with a safe and supportive learning environment, and they should never make comments about a student’s sexual orientation that could embarrass or demean the student. By making the comment that she did in the presence of other students, the Member demonstrated a significant disregard for Student 1’s well-being. Accordingly, the Committee finds that the Member’s insensitive comment constitutes verbal abuse.
3) The Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)
The Committee finds that the Member psychologically or emotionally abused Student 1 when she spoke about his sexual orientation in the presence of other students. Student 1 testified about the impact that the Member’s conduct had on him. Student 1 explained that when the Member commented about his sexual orientation he was at first “shocked” and “taken a back” because he was not “out of the closet yet” and had never spoken about his sexuality before. He testified that he was worried he was going to be “found out or called out” and that it might affect his relationships with his peers at school. Student 1 testified that he “came out” about his sexuality a lot earlier than he had intended, because of the [XXX] Incident. He stated that he was very concerned that he was suddenly the focus of so much attention and that it was difficult for him to keep to himself, as he had wanted to, following the [XXX] Incident
The Committee also received evidence from Student 1’s mother who described her observations of Student 1’s emotional and physical well-being after the event in question. She testified that the Member’s conduct affected Student 1 emotionally. She stated that he had trouble with depression and was concerned about going to school. She further testified that Student 1 lost his appetite, could not sleep, and felt physically ill.
The above evidence substantiates a finding that the Member’s conduct was psychologically or emotionally abusive. Teachers are expected to support students and to provide them with safe spaces in which to learn and develop. The Member clearly disregarded the feelings of Student 1 through her actions, and engaged in psychologically or emotionally abusive behaviour.
4) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)
The Committee finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” When the Member spoke about Student 1’s sexual orientation in the presence of other students, she failed to act as a positive role model. Her comments directed at Student 1 were unjust and demonstrated a troubling lack of concern for Student 1’s well-being.
5) 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)
The Committee finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The factual findings set out above demonstrate that the Member violated the trust that the public places in teachers. When parents send their children to school, they expect that they will be safe. The Member breached this trust when she made insensitive remarks about Student 1 and demonstrated homophobic behaviour. Commenting about a student’s sexual orientation is unacceptable and shows poor professional judgment. This type of conduct is disgraceful, dishonourable and unprofessional.
6) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)
The Committee finds that the Member engaged in conduct unbecoming a member of the teaching profession by commenting on Student 1’s sexual orientation in the presence of other students. Through her inappropriate conduct, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers. It reflects poorly on the profession as a whole when members behave disgracefully, as the Member has.
PENALTY
The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.
Date: June 11, 2018
Marie-Claude Yaacov Chair, Discipline Panel
Claudia Patenaude-Daniels, OCT Member, Discipline Panel
Wes Vickers, OCT Member, Discipline Panel
Footnotes
- The Committee’s reasons for dismissing the Member’s motions are set out in its Decision and Reasons on Motion to Dismiss for Delay and Motion for Adjournment dated November 3, 2017.
- The Committee’s reasons for granting the Member’s second motion for adjournment are set out in its Decision and Reasons on Second Motion for Adjournment dated November 3, 2017.