Ontario College of Teachers v. Montgomery, 2018 ONOCT 4

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Montgomery 2018 ONOCT 4

Date: 2018-01-03

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

Leo Edward Montgomery, a retired member of the Ontario College of Teachers.

PANEL: Ravi Vethamany, OCT, Chair

Marie-Thérèse Hokayem

Colleen Landers

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Amy Leung,

) Law Clerk

– and – )

LEO EDWARD MONTGOMERY ) Adam Webb,

(CERTIFICATE # 164928) ) Ursel Phillips Fellows ) Hopkinson LLP,

) for Leo Edward Montgomery

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: December 12, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 12, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 11, 2014 (Exhibit 1) was served on Leo Edward Montgomery (the “Member”), requesting his presence on July 3, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 12, 2017.

The Member was in attendance for the hearing and had legal representation.

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 subsections 30(2) and 40(1.1)¹ of 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);²

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;³

(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

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Leo Edward Montgomery was, at all material times, 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 respecting the Member.

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

3. During the 2011-2012 academic year, the Student was an [XXX] year old student enrolled in the Member’s Grade [XXX] [XXX]class.

4. During the fall of 2011, the Member and the Student became friendlier and eventually the Member and the Student began to exchange emails.

5. The Member and the Student also exchanged electronic communications via an electronic messaging program, and using the Member’s Gmail account rather than a school board account.

6. The electronic communications between the Member and the Student were of a personal nature and included inappropriate comments by the Member.

7. During the Member and the Student’s electronic exchanges, in response to a request from the Student, the Member sent the Student two pictures of himself. The Student also sent the Member two pictures of herself in a new dress.

8. The Member frequently met with the Student outside of the School to assist her with her school work. The Member took the Student for coffee and out for meals.

9. On several occasions, at the Student’s request, the Member walked the Student home from School.

10. On November 21, 2011, the Student told the Member that she could not sleep and was feeling upset. The Member attended at the Student’s home at around 2:00 a.m. believing that she needed assistance. The Member emailed the Student to notify her that he was there. The Student did not open the door to the Member.

11. On November 27, 2011, the Member took the Student to a movie for her [XXX]. In addition, the Member purchased alcohol for the Student.

12. The Member bought the Student gifts such as [XXX]. In addition, the Member offered to buy the Student clothes or give her a $200 gift card if she graduated. The Student declined both offers and so the Member did not give her clothes or a gift card at that time.

13. On occasion, the Member told the Student that he was arranging his weekend plans in order to have a chance to see her.

14. On one occasion, the Member put his arm around the Student and hugged her. The Student had initiated hugs with the Member on two previous occasions. On one occasion, the Member communicated to the Student that he could not wait until February because then she would not be his student anymore and they could have a relationship.

15. The Member’s conduct toward the Student caused her to feel uneasy and uncomfortable, though she never stated her discomfort to the Member. She decided to leave the School, and eventually transferred to a different school for the 2012-2013 school year.

16. Attached and marked as Exhibit “B” are copies of some of the email exchanges between the Member and the Student, with the Student’s name redacted.

17. Attached and marked as Exhibit “C” are copies of the photos that the Member sent to the Student via email.

18. The Student disclosed information about her relationship with the Member to a Board psychologist, whom she was seeing for mood issues. The psychologist notified Board officials.

19. The Member’s employment was terminated by the Board on or about February 7, 2013. Attached and marked as Exhibit “D” are copies of letters from the Senior Manager, Employee Services to the Member dated February 1, 2013 and February 7, 2013 respectively.

20. The Member has since informed the College that he has retired.

College’s Professional Advisory

21. The Ontario College of Teachers approved a professional advisory on use of electronic communication and social media on February 23, 2011. Attached hereto and marked as Exhibit “E” is a copy of the College’s advisory.

GUILTY PLEA

22. By this document⁴, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 21 above (the “Admitted Facts”).

23. 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(15), 1(18) and 1(19).

24. 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 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 proposed in the Joint Submission on 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.

25. In light of the Admitted Facts 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

Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(7.2) and 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted these requests.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of 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(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 21 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(15), 1(18) and 1(19).

Paragraphs 4-15 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 4-15 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 4-15 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 4-15 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 suspend the Certificate of Qualification and Registration of the Member for a period of 16 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) before returning to teaching or any other position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries and boundary violation issues;

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

(i) he or she has reviewed 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 and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes 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 cases presented by College Counsel: Ontario College of Teachers v. Keyte, 2013 ONOCT 56, Ontario College of Teachers v. Burdett, 2011 ONOCT 8, Ontario College of Teachers v. Calautti, 2010 ONOCT 5 and Ontario College of Teachers v. Lemieux, 2015 ONOCT 50.

The Committee finds that the Member’s inappropriate and unprofessional conduct warrants a reprimand by his peers. The Committee is concerned that the Member developed an inappropriate, personal relationship with the Student and that he failed to maintain appropriate professional boundaries. Among other things, the Member exchanged personal, electronic messages with the Student; he sent pictures of himself to the Student and received pictures of her; he took the Student out for coffee and meals; he went to the Student’s home at 2:00 a.m. (although the Student did not let him in); he took the Student to a movie for her [XXX]and bought her alcohol and other gifts; he put his arms around the Student and hugged her; and he told her that he could not wait until she was no longer his Student so that they could have a relationship.

Members of the teaching profession hold a unique position of trust and authority, and the Member abused this position in an egregious manner. In the process, he made the Student feel uncomfortable. The Member’s inappropriate interactions with the Student were numerous, repeated, and unacceptable. The College’s Professional Advisory advises members to avoid exchanging private texts, phone numbers, personal email addresses or photos of a personal nature with students. The Member’s misconduct failed to meet the ethical standards of Care, Respect, Trust, and Integrity and the standard of practice of commitment to students and students learning. 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.

Given the serious and repeated nature of the Member’s conduct, the Committee finds that a 16-month suspension is reasonable and appropriate. The duration of the suspension is within a reasonable range, as established by the case law presented by the College. Although the Member is currently retired, recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession by informing them that there are serious consequences for developing inappropriate, personal relationships with students.

Should the Member decide to return to the teaching profession, he will be required to successfully complete the prescribed professional learning coursework set out above. The Committee finds that the course of instruction regarding professional boundaries and boundary violation issues 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 students. A notation will also remain on the Member’s public register profile until he satisfies the terms, conditions or limitations relating to the coursework requirements. This will serve as a general deterrent to other members of the profession.

Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.

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

Date: January 3, 2018

Ravi Vethamany, OCT

Chair, Discipline Panel

Marie-Thérèse Hokayem

Member, Discipline Panel

Colleen Landers

Member, Discipline Panel

Footnotes

1. 1Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
2. 2Allegation withdrawn.
3. 3Allegation withdrawn.
4. 4For the purposes of paragraphs 22 and 24, this “document” refers to the Agreed Statement of Facts and Guilty Plea.