DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
Citation: Ontario College of Teachers v Kpodjie 2018 ONOCT 50
Date: 2018-11-06
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
Christian Kpodjie, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
CHRISTIAN KPODJIE (REGISTRATION #522702)
PANEL: Jonathan Rose, Chair Diane Ballantyne, OCT Vicki Shannon, OCT
HEARD: November 6, 2018
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk Robyn White of Cavalluzzo LLP, for Christian Kpodjie Erica Richler 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 November 6, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 7, 2017 (Exhibit 1) was served on Christian Kpodjie (the “Member”), requesting his presence on October 2, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for November 6, 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);1
(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);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 as defined in section 1 of the Act;3
(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:
Christian Kpodjie 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.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Toronto, Ontario.
At all material times, the students at issue were male and female students in two classes that the Member taught that year: a Grade [XXX] and a Grade [XXX] [XXX] class.
Between September 2012 and March 2013, the Member used the words, “Beautiful,” “Sweetheart” and “Pretty” when referring to female students in his classes.
Student 1 was a Grade [XXX] male student in the Member’s class during the 2012-2013 school year. The Member touched Student 1’s cheek while he was at his desk and when he was at the chalkboard and answered a question correctly.
Student 2 was a Grade [XXX] male student in the Member’s class during the 2012-2013 school year. The Member pinched Student 2 lightly on the cheek to encourage and/or congratulate him when Student 2 spoke to the Member in [XXX]. During the pinching, the Member smiled and laughed.
Student 3 was a Grade [XXX] male student in the Member’s class during the 2012-2013 school year. The Member lightly pinched Student 3’s cheek and patted him on the head and said “that’s okay” when Student 3 forgot to do his homework, which the student indicated he felt was intended as encouragement.
Student 4 was a Grade [XXX] male student in the Member’s class during the 2012-2013 school year. The Member lightly pinched Student 4’s cheek while he was in the classroom, the hallways of the School and outside. This occurred while Student 4 was getting candy from the Member as a reward or when the Member was admonishing him for eating too much sugar.
Student 5 was a Grade [XXX] female student in the Member’s class during the 2012-2013 school year. The Member held Student 5’s hand and pinched her on the cheek. The hand holding and pinching on the cheek occurred during [XXX] class.
Student 6 was a Grade [XXX] female student in the Member’s class during the 2012-2013 school year. The Member stroked Student 6’s arm on one occasion during [XXX] class to compliment her for work well done.
Student 7 was a Grade [XXX] female student in the Member’s class during the 2012-2013 school year. The Member touched Student 7 on the hand, arm and back and said “good job” when he checked her homework during [XXX] class.
Student 8 was a Grade [XXX] female student in the Member’s class during the 2012-2013 school year. The Member kissed Student 8 on the cheek when he asked about her sister. The kiss was fleeting and grandfatherly in nature.
Student 9 was a Grade [XXX] female student in the Member’s class during the 2012-2013 school year. The Member kissed Student 9 on the hand on one occasion during [XXX] class.
The Member admits the physical contact with students described in paragraphs 5 to 13 above was inappropriate even though it was not sexual in nature or intent.
In March 2013, the Member was charged with 42 counts of assault, sexual assault and sexual interference. Following a 23 day criminal trial, on July 24, 2015, all charges were dismissed, 13 of which were dismissed at the request of the Crown. The trial judge concluded that to the extent that he found any touching occurred, the touching was not sexual in nature or intent.
The Member voluntarily participated in a full day Professional Boundaries course delivered by the ETFO Provincial Office, on December 9, 2015. Attached hereto and marked as Exhibit “B” is a copy of the written certificate of completion obtained from the course provider.
The Member’s employment was terminated by the Board on or about June 22, 2016. The termination was grieved and ultimately, the Member resigned his employment with the Board in July 2017.
GUILTY PLEA
By this document,4 the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts at paragraphs 4 to 13 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 – unprofessional only) and 1(19).
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
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b), (c) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1), 1(7.2) and 1(7.3) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). 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 Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 - unprofessional only) 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(15), 1(18 - unprofessional only) and 1(19).
Paragraphs 4-13 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 4-13 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 4-13 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 unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 4-13 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:
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”);
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 or any position for which a Certificate of Qualification and Registration is required (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 November 6, 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 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. Aversano, 2017 ONOCT 79; Ontario College of Teachers v. Robertson, 2016 ONOCT 45 and Ontario College of Teachers v. Eyiah, 2015 ONOCT 20.
The Committee finds that the Member’s inappropriate and unprofessional conduct warrants a reprimand by his peers. The Member failed to maintain appropriate boundaries with his students by calling female students “Beautiful”, “Sweetheart” and “Pretty”, and by making physical contact with a number of students that included pinching their cheeks, patting them on the head, stroking their arms and kissing their cheeks and hands. Although the Member’s conduct was not of a sexual nature, it was nevertheless repeated and inappropriate. Because members of the profession hold a unique position of trust and authority, they must maintain appropriate professional boundaries at all times and they must not engage in overly familial behaviour with students. The significant power imbalance that exists between teachers and students is such that teachers should never make unnecessary physical contact with students. This type of behaviour often makes students feel uncomfortable and can negatively affect their experience at school. 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.
Although the Member has already completed a professional boundaries course in December 2015, the Committee finds that an additional course of instruction regarding appropriate boundaries and boundary violation issues will be necessary, if the Member returns to a Teaching Position. This additional coursework will assist in the rehabilitation of the Member and will reinforce his obligations as a teacher. The course will help to ensure that the Member interacts appropriately with students at all times, and it will highlight the need to maintain appropriate professional boundaries in order to avoid any unnecessary physical contact with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 6, 2018
Jonathan Rose Chair, Discipline Panel
Diane Ballantyne, OCT Member, Discipline Panel
Vicki Shannon, OCT Member, Discipline Panel