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 Bielby 2018 ONOCT 38

Date: 2018-06-22

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

David Bielby, OCT, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Ann Ciaschini, OCT

Ravi Vethamany, OCT

BETWEEN: )

) ) Zirka Jakibchuk,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

– and – )

DAVID BIELBY ) Kirsty Niglas-Collins,

(CERTIFICATE #275192) ) KNC Law, ) for David Bielby

) Robin McKechney,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: June 15, 2018

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 15, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated February 28, 2018 (Exhibit 1) was served on David Bielby (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 15, 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 the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

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

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

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. David Bielby is a member of the Ontario College of Teachers. In November 1994, the Member obtained a Temporary Letter of Standing after completing the Newfoundland Teacher Training program. He then obtained an Interim Certificate of Qualification and Registration in May 1997 and a Certificate of Qualification and Registration in July 1998. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2016-2017 academic year, the Member made inappropriate comments to students, including but not limited to:

(a) Calling a female student a bitch;

(b) telling students to “shut the fuck up” and saying to students “listen up bitches”, while trying to teach a class;

(c) calling students names belittling their academic ability, such as retards. He used such terms with students in his [XXX] class, some of whom were identified as having [XXX] and/or requiring [XXX];

(d) telling students that the [XXX] “were easy like their mom”;

(e) frequently making “what she said” jokes; and

(f) using profanity in the presence of students, including if his iPad was not working and/or if he made a mistake on the board.

4. The Member also mocked the School principal, Mr. Barzetti, in front of students by referring to him as “President Spaghetti” and stating that he is “going to make [XXX] great again.”

5. The Board conducted an investigation and found that the Member frequently mocked and belittled students for their conduct, academic and otherwise. The Board also concluded that the Member’s inappropriate comments impacted the female students in the Member’s class and fostered an environment that was not a safe space for all students.

6. The Member was apologetic and remorseful for his actions. When interviewed by the Board, he stated, “I wish I could have managed better”, “I’m sorry to the kids”, and “I know I was inappropriate.”

7. A report was made to the Children’s Aid Society (the “CAS”). The CAS verified that students were placed at risk of emotional harm as a result of the Member’s actions. However, the CAS also found that the Member “appears to have taken responsibility for his behavior and is clear that this will not occur again.” Attached hereto and marked as Appendix “B” is a copy of the CAS’ letter dated June 26, 2017.

8. The Board suspended the Member without pay for a period of seven days. The Member was further re-assigned to another school for the 2017-2018 academic year and required to participate in professional development on appropriate boundaries through the Ontario Secondary School Teachers Federation (the “OSSTF”), prior to resuming his teaching duties in September 2017. Attached hereto and marked as Appendix “C” is a copy of the Board’s revised discipline letter dated October 3, 2017.

9. The Member completed a two-hour course on professional boundaries on June 16, 2017. Attached hereto and marked as Appendix “D” is a copy of OSSTF’s confirmation of completion dated July 13, 2017.

GUILTY PLEA

10. By this document,¹ the Member admits the truth of the facts and appendices referred to in paragraphs 1-9 above (the “Admitted Facts”).

11. 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(7), 1(7.2), 1(15), 1(18) and 1(19).

12. 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 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 his counsel and counsel for the College with respect to the penalty does not bind the Discipline Committee; and

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

13. In light of the Admitted Facts and circumstances and the plea of guilt, the College 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 15, 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(7), 1(7.2), 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 9 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(7), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 3-5 and 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 3-5 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).

Paragraphs 5 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 3-5 and 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 3-5 and 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 3-5 and 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 that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, with 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 Decision, Reasons for Decision and Order of the Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction regarding professional boundaries, pre-approved by the Registrar, subject to the following conditions;

(i) the Member will provide to a course practitioner, 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 Committee;

(ii) upon review of the documents noted at paragraph 2(a)(i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Committee’s concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in paragraph 2(a) above, the Member shall provide to the Registrar a written certificate from the course practitioner:

(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 15, 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

After having received additional submissions from the parties and advice from Independent Legal Counsel, the Committee accepted 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 invited the parties to make additional submissions in order to explain why no suspension was sought in this matter, despite the fact that the Member made highly inappropriate comments that were sexist and demeaning to students, including those with [XXX]. The Committee further asked the parties to explain how the proposed penalty does not bring the administration of the discipline process into disrepute.

The parties submitted, and the Committee accepts, that there were a number of mitigating factors in this case, which justify the jointly proposed penalty. The mitigating factors include the fact that the Member was immediately apologetic and remorseful for his conduct; the CAS recognized that the Member took responsibility for his actions; the Member has no prior or subsequent discipline history at the College; the Member has already served a significant suspension through his Board and taken remedial coursework regarding boundary violations through his Board; and the Member came to an agreement with the College, which obviated the need for a contested hearing. Moreover, the Committee accepts that the parties considered other mitigating factors in arriving at their negotiated settlement and that the Committee was not privy to all of the contextual factors that led to the parties’ agreement.

Accordingly, although the Member’s misconduct was serious and highly inappropriate, the Committee accepts that the penalty jointly proposed by the parties would not bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The penalty proposed by the parties is also within a range of acceptable outcomes, based on the following similar cases presented by the parties: Ontario College of Teachers v. Gionest, 2017 ONOCT 92 and Ontario College of Teachers v. Brown, 2017 ONOCT 38, presented by College Counsel; and Ontario College of Teachers v. Shuber, 2015 ONOCT 72, presented by Member’s Counsel. The Committee must therefore accept the parties’ jointly proposed penalty.

Reprimand

The Committee finds that the Member’s repeated inappropriate conduct warrants a reprimand by his peers. The Member made a number of rude and disparaging comments to students, he made sexist comments that had a negative impact on female students in his class, he used profanity in the presence of students, and he mocked his principal in the presence of students. The Member’s insensitive, demeaning and insubordinate behaviour was unacceptable. Members of the profession are expected to serve as role models for students and to foster safe and supportive learning communities. The Member did the opposite. Although the Member was remorseful and apologetic from the very beginning of the investigation into his conduct, his behaviour was nevertheless very inappropriate. 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.

Coursework

The Committee finds that the course of instruction regarding professional boundaries is appropriate in this case as it will assist in the rehabilitation of the Member. The Committee recognizes that the Member has already completed a two-hour course on professional boundaries, as required by his Board. Nevertheless, the Committee believes that an additional and more extensive course on professional boundaries is necessary in this case. The coursework will address the specific acts of professional misconduct in which the Member has engaged, in order to help the Member gain the necessary insight into his misconduct that will enable him to make meaningful improvements to his teaching practice. In particular, the coursework should address the Member’s use of language that is disrespectful to women. It should also address the Member’s concerning insensitivities towards students with [XXX]. Finally, the coursework should reinforce for the Member the need to adhere to the standards of the teaching profession, including the expectation that members act with care and integrity, and foster collaborative, safe and supportive learning communities in which they work cooperatively with their colleagues and school administration, and in which they treat all students with respect.

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 22, 2018

______________________________

Tom Potter

Chair, Discipline Panel

______________________________ Ann Ciaschini, OCT

Member, Discipline Panel

______________________________

Ravi Vethamany, OCT

Member, Discipline Panel

Footnotes

1. 1For the purposes of paragraphs 10 and 12, this “document” refers to the Agreed Statement of Facts and Guilty Plea.