DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Chiandussi 2018 ONOCT 48

Date: 2018-10-10

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

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

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID CHIANDUSSI (REGISTRATION #471207)

PANEL: Diane Ballantyne, OCT, Chair

Ann Ciaschini, OCT

HEARD: October 3, 2018

Stephanie Sugar of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk

Jerry Raso of Ontario English Catholic Teachers’ Association, for David Chiandussi

Robin McKechney of Steinecke Maciura LeBlanc, 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 3, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated February 8, 2016 (Exhibit 1) was served on David Chiandussi (the “Member”), requesting his presence on March 1, 2016 to set a date for hearing and specifying the allegations. The hearing was subsequently set for October 3, 2018.

Neither the Member nor his legal counsel were in attendance for the hearing. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

Shortly after the commencement of the hearing, after the Notice of Hearing had been recorded as Exhibit 1 and the Agreed Statement of Facts and Guilty Plea had been presented to the Committee, Mr. Bill Petrie recused himself from the Committee in this matter because he discovered that a conflict of interest existed. Mr. Petrie had been a member of the Investigations Committee panel that had considered the Member’s matter before it was referred to the Discipline Committee. Pursuant to section 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and with the parties’ consent, the remaining two Committee members completed the hearing and gave a decision without Mr. Petrie’s participation in any part of the decision-making process.

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 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 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;

(e) 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);

(f) 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

(g) 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 Chiandussi is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. During the 2014-2015 academic year, the Member taught [XXX] to Grades [XXX] at the School.

4. Student 1 was a [XXX]-year-old, female student in the Member’s Grade [XXX] [XXX] class.

Personal Relationship

5. The Member developed a personal and inappropriate relationship with Student 1 over a period of approximately six months during the 2014-2015 academic year. The Member developed a privileged relationship with Student 1, in that:

(a) She was allowed to listen to music, eat food and swear in class;

(b) She did not have to [XXX] for her food;

(c) The Member gave Student 1 gifts and arranged for these to be given in “secret” ways;

(d) The Member communicated by text message with Student 1;

(e) The Member drove her in his vehicle and offered her to practice driving in his car;

(f) The Member declared his feelings for Student 1; and

(g) The Member devised pseudonyms attempting to hide his identity during his electronic communications with Student 1.

6. Attached hereto and marked as Exhibit “B” is a copy of the handwritten statement of Student 1 detailing these events.

Electronic Communications

7. The Member communicated with Student 1 via text message, beginning in and around December 2014 through to March 2015. Their text exchanges occurred during school hours, in the mornings, and often late at night or over the weekends. The Member counselled Student 1 to use pseudonyms on their phones to disguise their identities during text message exchanges. He told her to save his phone number under the name [XXX]. He saved her phone number under the name [XXX]. [XXX] is noted on some of the attached text messages. Attached hereto and marked as Exhibit “C” are copies of screen shots of the various text messages sent between the Member and Student 1.

8. The Member and Student 1 exchanged a series of text messages on Christmas Day between 2:26 pm and 3:56 pm. One of the text messages he sent was a link to a YouTube video of himself (and two other male adults) dancing at a school assembly, with the comment “Just in case you miss me making an ass of myself.”

Observations of Third Parties

9. Other students in the class noted the special attention or developing relationship between them, noting the following:

(a) “He favoured her as a student in his class.”

(b) “They spoke often during the entire school day and after school.”

(c) “She frequently visits his room even though she no longer has a class with him, and spends time there after school.”

(d) “She has been in his car several times.”

(e) “He drove her home.”

(f) “They exchanged cell phone numbers and texted/called each other.”

(g) “Everyone in that [XXX] class sensed a relationship between them, she was often singled out by him.”

(h) “He gave her a sip of his wine” at [].

(i) He commented that she was “really cute and if she [sic] was younger he would go for her.”

(j) He said he would “never let anyone lay a hand on her.”

(k) “During the play Student 1 was walking with Mr. Chiandussi’s kids and the kids said is that mommy meaning Student 1 and Mr. Chiandussi said I wish.”

(l) “He would tell her stuff and make her promise she would not tell anyone” and ask her “not to tell her parents.”

(m) “He sprayed cologne in the shirt he got her for Christmas.”

(n) “She once said ‘suck my ass’ to him and he said he would.”

(o) He followed the group of girls on Twitter, then ‘unfollowed’ them, except for Student 1.

(p) “[Student X] and I thought he was a pedophile.”

(q) “[Student 1] was cleaning a [XXX] in class an [sic] he made an inappropriate (dirty) joke about it.”

(r) “Sometimes [Student 1] would miss school and not want to go to [XXX] class.”

Gifts

10. The Member provided several gifts to Student 1, including:

(a) [XXX] scarf;

(b) [XXX] shirt;

(c) [XXX] watch;

(d) Birthday card with [XXX] chocolate [XXX];

(e) $50.00 [XXX] card.

Attached hereto and marked as Exhibit “D” are copies of the police photograph of gifts and the birthday card.

11. One of the Member’s gifts was a card with chocolate [XXX] and a $50 [XXX] card. In the card the Member wrote: “Unfortunately I have to give you [XXX] ‘chocolate [XXX]’ But if you want I can give you [XXX] real ones?...”

12. The Member tried to conceal his gift-giving to Student 1 and gave Student 1 instructions about how to avoid detection.

Declaration of Feelings

13. On or about February 28, 2015, Student 1 declared she had feelings for the Member, and the Member reciprocated this declaration stating, “we are sharing the same feelings.” Attached hereto as Exhibit “E” is the text exchange between the Member and Student 1.

Report to the School Board and Subsequent Investigation

14. On or about March 1, 2015 one of Student 1’s friends came forward to a teacher at the School expressing concern about the relationship between the Member and Student 1. The School investigated. On March 2, 2015 the [XXX] Police were contacted. The [XXX] Police officers advised that they believed there were reasonable grounds that the offence of sexual exploitation had occurred. Charges were not pursued at the request of Student 1 and her family.

Termination

15. On March 10, 2015, the Member’s employment was terminated by the Board for engaging in grooming behaviour which led to an unprofessional and inappropriate relationship with a [XXX] -year-old female student. Attached hereto and marked as Exhibit “G” is a copy of the termination letter, dated March 10, 2015.

Dr. Arnold’s Report

16. The College engaged Dr. Mary Louise Arnold to review the matter. As set out in Dr. Arnold’s report, she concluded:

(a) Several aspects of the Member’s relationship with Student 1 are “consistent with recognized patterns of ‘grooming’ behaviour”;

(b) Student 1 displayed vulnerabilities and the Member was aware of these emotional struggles;

(c) All of the behaviour on the part of the Member was “far beyond the boundaries of an appropriate teacher-student relationship, and are all consistent with patterns of grooming behaviour”; and

(d) The Member “gradually, but persistently, introduced sexual dimensions” into the relationship with Student 1.

17. Attached hereto as Exhibit “H” is a copy of Dr. Arnold’s expert report, dated January 12, 2018.

Professional Advisories

18. The Ontario College of Teachers approved a professional advisory on professional misconduct related to the use of electronic communications on February 23, 2011. Attached hereto and marked as Exhibit “I” is a copy of the College’s advisory. The Member’s conduct was not consistent with this advisory.

19. The Ontario College of Teachers approved a professional advisory on professional misconduct related to sexual abuse and sexual misconduct on September 27, 2002. Attached hereto and marked as Exhibit “J” is a copy of the College’s advisory. The Member’s conduct was not consistent with this advisory.

GUILTY PLEA

20. By this document,² the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 19³ above (the “Admitted Facts”).

21. 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(7.3), 1(15), 1(18) and 1(19). The Member also admits that he engaged in sexual abuse of a student of a nature defined in sections 1, 30(2) and 40(1.1) of the Act.⁴

22. 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 admitting [sic] 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 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 Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

23. 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 College Counsel, the Committee rendered an oral decision on October 3, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 19 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), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).

Paragraphs 5-19 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, 9, 11 and 13 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 5-17 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 9-11 and 13-17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of a student or students as defined in section 1 of the Act.

Paragraphs 5-19 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)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 5-19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5-19 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 4), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

1. direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;

2. 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”).

PENALTY DECISION

In an oral decision rendered on October 3, 2018, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its term, as set out above, with a slight change made to the timing of the reprimand. Because the Member was not present during the hearing and could therefore not receive his reprimand immediately following the hearing, the Committee ordered that the Member must appear before the Committee within 60 days of the date of this order to receive his reprimand in person.

REASONS FOR PENALTY DECISION

The Member’s misconduct included the sexual abuse of a student, but it did not involve an act listed at subsection 30.2(2) of the Act. In accordance with subsection 30.2(1) of the Act, the Committee must (at a minimum) make an order: requiring that the Member be reprimanded by the Committee; and directing the Registrar to suspend his Certificate of Qualification and Registration. Given the circumstances of this case and the agreement between the parties, the Committee finds that revocation is a more appropriate penalty than a suspension. The Committee has the discretion to make this order pursuant to subsection 30.2(3) and 30(4) of the Act.

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 public register will serve as a general deterrent to other members of the teaching profession. The Committee recognizes that the Member did not attend the hearing and therefore could not appear “immediately following the hearing of this matter” to receive his oral reprimand, as set out in the Joint Submission on Penalty (Exhibit 4). Therefore, on the advice of Independent Legal Counsel that it has discretion with respect to the timing of the delivery of the reprimand, the Committee ordered that the Member appear within 60 days of the date of the order to receive his oral reprimand. The Committee determined that 60 days is a reasonable amount of time for the Member to make arrangements to attend at the College for the delivery of his reprimand.

The Committee found that revocation was the appropriate penalty in this case. College Counsel presented three analogous cases to support the parties’ joint position that the Member’s Certificate of Qualification and Registration should be revoked: Ontario College of Teachers v. Guilbault, 2017 ONOCT 6, Ontario College of Teachers v. Hay, 2017 ONOCT 58, Ontario College of Teachers v. Russell, 2017 ONOCT 96 and Ontario College of Teachers v. Bond, (7 September 2018).

The Member’s conduct was completely unacceptable. He failed to maintain appropriate teacher-student boundaries by engaging in an inappropriate personal relationship with Student 1. The Member’s inappropriate conduct occurred over a period of approximately six months and was indicative of grooming behaviour. The Member and Student 1 exchanged communications of a romantic or sexual nature. The Member treated Student 1 differently in class, giving her “privileges” that other students did not have. He made inappropriate comments to Student 1 in the presence of other students. The Member also bought Student 1 various gifts. As a result of the Member’s conduct, the Student described feeling confused and overwhelmed, and she noted that she cried herself to sleep for about a month. She further noted that the Member scared her when he drove her to the river and told her that he had feelings for her (see Exhibit 2 at Tab B). The Committee strongly denounces the Member’s abuse of his position of trust and authority. Members of the profession are expected to promote and participate in the creation of safe and supportive learning communities. The Member’s conduct put Student 1 at risk, and undermined the public’s trust and confidence in the teaching profession. As a result, the Member has lost the privilege of holding a Certificate of Qualification and Registration.

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 10, 2018

Diane Ballantyne, OCT

Chair, Discipline Panel

______________________________ Ann Ciaschini, OCT

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. 2For the purposes of paragraphs 20 and 22, this “document” refers to the Agreed Statement of Facts and Guilty Plea.
3. 3The Committee notes that the numbering in the original copy of the Agreed Statement of Facts and Guilty Plea incorrectly referred to paragraphs 1-36 as the Admitted Facts. However, there are in fact only 19 numbered paragraphs that constitute the Admitted Facts.
4. 4The Committee notes that section 30(2) of the Act does not provide a definition of sexual abuse and section 40(1.1) of the Act has been repealed after amendments to the Act came into force on December 5, 2016. The Committee, however, recognizes that the Member admitted that he engaged in sexual abuse of a student as defined in section 1 of the Act.