DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bowers 2018 ONOCT 42

Date: 2018-10-15

DECISION, REASONS FOR DECISION AND ORDER

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

Mark Andrew Bradley Bowers, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARK ANDREW BRADLEY BOWERS (REGISTRATION #577920)

PANEL: Nicola Powadiuk, OCT, Chair

Marlène Marwah

Sara Nouini, OCT

HEARD: October 15, 2018

Eli Mogil of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

Kirsty Niglas-Collins of KNC Law, for Mark Andrew Bradley Bowers

Renée Kopp of Jones Litigation Counsel LLP, Independent Legal Counsel

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.

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

A Notice of Hearing dated April 13, 2017 (Exhibit 1) was served on Mark Andrew Bradley Bowers (the “Member”), requesting his presence on May 5, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for October 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(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. Mark Andrew Bradley Bowers 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 respecting the Member.

2. At all material times, the Member was employed by the Bluewater District School Board (the “Board”) as [XXX] [XXX] teacher at [XXX] (the “School”) in [XXX], Ontario. There were approximately 600 students at the School, including approximately 150 Grade [XXX] students.

3. At all material times, Student 1 and Student 2 were female students at the School.

Student 1

4. Student 1 was in the Member’s Grade [XXX] [XXX] school [XXX] class in July and August 2013. She was [XXX] years old at that time.

5. After [XXX] school, the Member saw Student 1 at a community [XXX] and they briefly chatted about Student 1’s summer plans.

6. Student 1 attended the School for the 2013-2014 academic year and graduated in June 2014.

7. In the summer of 2014, the Member’s Facebook account generated a list of people he may know. Student 1 appeared on the list. The Member sent Student 1 private messages to ask whether she would be attending the [XXX] again. This was inappropriate and made Student 1 feel uncomfortable. Attached hereto and marked as Exhibit “B” is a copy of the private messages from Facebook.

8. Student 1 went back to the School to complete additional courses in September 2014 which were completed in January 2015. During this time, the Member was not teaching at the School.

Student 2

9. During the 2014-2015 school year, Student 2 was a Grade [XXX] student at the School.

10. During 2014, the Member was not teaching at the School. In 2014, the Member met Student 2 at a restaurant where she worked. The Member would chat with Student 2 and engaged in electronic communications with her. The communications were of a personal nature, including telling her that he was “getting drunk” with his friends.

11. The Member taught in a [XXX] at the School, teaching Grade [XXX] [XXX], Grade [XXX] [XXX] and [XXX] from February to June 2015. In 2015, Student 2 was not enrolled in any of the Member’s classes.

12. The Member invited Student 2 to his home on at least two occasions. On one occasion, in and around June 2015, the Member and Student 2 watched a [XXX] on television together at the Member’s home.

13. In April and May 2015, the School’s administration received informal reports that the Member was engaged in an inappropriate relationship with a student at the School. School officials conducted interviews with the students in the Member’s classes to investigate these reports. The Member understood that students were being interviewed about his relationship with Student 2.

14. In the first week of June 2015, the Member, while still teaching and under investigation, met with Student 2 at his home to discuss the ongoing investigation that was being conducted by the School administration. He explained to Student 2 that he hoped that if she denied any relationship the School might end the investigation.

15. On June 12, 2015, the Member was advised by the Board that reports had been received about his electronic communications with students and that Student 2 had visited the Member’s home. On this date, the Member was placed on administrative leave without pay.

16. The Member has remained on administrative leave without pay from the Board since June 12, 2015. The Member is currently employed in a position with another employer and is not teaching.

College’s Professional Advisory

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

GUILTY PLEA

18. By this document,¹ the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).

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

20. 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 this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

21. 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 October 15, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 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 17 of the Agreed Statement of Facts and Guilty Plea and admitted 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(7.2), 1(15), 1(18) and 1(19).

Paragraphs 7, 10, 12 and 14 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 7, 10, 12 and 14 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 7, 10, 12 and 14 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 7, 10, 12 and 14 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 7, 10, 12 and 14 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, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or resuming any Teaching Position for which a Certificate of Qualification and Registration (a “Teaching Position”) is required, and no later than 90 days before commencing or resuming a Teaching Position, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues, subject to the following conditions:

(i) the Member will provide to the 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 Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course practitioner 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 practitioner 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 practitioner which:

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

PENALTY DECISION

In an oral decision rendered on October 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

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 reasonable given the circumstances of this case, and that it falls within a range of acceptable outcomes, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Erland, 2017 ONOCT 54 and Ontario College of Teachers v. Webster, 2015 ONOCT 86; and based on the following analogous case presented by Counsel for the Member: Ontario College of Teachers v. Pott, 2014 ONOCT 83.

The Committee finds that the Member’s pattern of inappropriate conduct warrants a reprimand by his peers. In the summer of 2014, the Member sent inappropriate private Facebook messages to a student that made her feel uncomfortable. During the following school year, while the Member was no longer teaching at the School, he entered into an inappropriate relationship with another student from the School. The Member met this student at a restaurant, engaged in electronic communications with her in which, among other things, he told her that he was “getting drunk” with his friends, and invited her to his home at least twice. When the Member became aware that an investigation was being conducted by the School, he encouraged the student to deny the relationship.

The Committee is concerned that the Member failed to maintain appropriate boundaries with at least two different students. Members of the profession hold a unique position of trust and authority and the Member abused this trusted position by becoming too close with these students outside of the educational setting. It was also completely inappropriate for the Member to interfere with the School’s ongoing investigation into his conduct by encouraging a student to deny any relationship with him. 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 the course of instruction regarding appropriate boundaries and boundary violation issues will assist in the rehabilitation of the Member. The coursework will remind the Member of the professional standards expected of him as a teacher and it will reinforce that teacher-student relationships that cross the acceptable professional boundaries are strictly forbidden. This remedial coursework will help the Member to make better decisions should he return to a Teaching Position.

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

Date: October 15, 2018

Nicola Powadiuk, OCT

Chair, Discipline Panel

______________________________ Marlène Marwah

Member, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

¹ For the purposes of paragraphs 18 and 20, this “document” refers to the Agreed Statement of Facts and Guilty Plea.