DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Tom William Maloney, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
TOM WILLIAM MALONEY (REGISTRATION #179192)
PANEL: Alicia Nunn, OCT, Chair Marlène Marwah Vicki Shannon, OCT
HEARD: November 5, 2018
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk Melanie Reist of Morrison Reist Krauss LLP, for Tom William Maloney Julie Maciura 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 5, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated June 28, 2016 (Exhibit 1) was served on Tom William Maloney (the “Member”), requesting his presence on July 26, 2016 to set a date for hearing and specifying the allegations. The hearing was subsequently set for November 5, 2018.
Neither the Member nor his legal counsel were in attendance for the hearing. However, 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 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);
(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;
(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:
Tom William Maloney 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.
At all material times, the Member was employed by the Waterloo Region District School Board (the “Board”) as an [XXX] teacher at [XXX] School (the “School”) in Waterloo, Ontario.
At all material times, Student 2, Student 3, Student 4 and Student 5 were female students at the School in Grade [XXX].
During the 2012-2013 school year, during a [XXX] class, the Member called Student 2 to the front of the class, put a [XXX] on her, then buttoned up the [XXX] on Student 2, touching the body of Student 2 as he did so. The Member acknowledges buttoning up the [XXX] on Student 2, but states that any touching of Student 2’s body was not intended to be of a sexual nature.
During the 2012-2013 and 2013-2014 school years, several students felt that the Member was looking at them in an inappropriate sexual manner, including looking at their breasts, buttocks, or crotch. The Member denies that he intended to look at the students in a sexual manner or to make them feel uncomfortable.
In or about the Spring of 2013, at the end of a school day, the Member invited Student 2 and another student to come over to his home and have a popsicle. In or about October 2013, the Member asked Student 2 and another student if they would like to come to the Member’s home to carve a pumpkin. The other student [XXX] from the Member’s home, and the Member was [XXX] with her parents. Student 2 declined the Member’s invitations to come to his home.
During the 2012-2013 school year, the Member asked Student 3 personal questions about her family and in particular, about her mother and the mother’s boyfriend.
During the 2012-2013 school year, Student 3 told the Member that she was spending a lot of time at a [XXX] for [XXX] classes. When the Member found out that the [XXX] was very close to his home, he told Student 3 that between classes she should come over to his house and lie on his couch.
During the 2012-2013 school year, as Student 4 was entering the classroom, the Member gave her a crumpled piece of paper. When she looked at the piece of paper she saw it had the number “69” printed on it. Student 4 asked the Member why he had given her the number. At the end of the class, the Member said that he did not intentionally give Student 4 the number “69” and took the students who had seen the number to the School office to explain the situation.
In or about November 2013, the Member was driving to the School in his car. He stopped his car about 150 metres from the School beside Student 5, who was walking to the School. The Member asked Student 5 three times if she would like a ride in his car. She eventually got into his car and he drove her the rest of the way to School.
In May 2014, the Board investigated the above-noted incidents. Prior to the 2014 investigation, the Member had received two letters of expectation from the Board.
Attached hereto and marked as Exhibit “B” is a letter of expectation to the Member dated November 10, 2010, following two incidents in which the Member used inappropriate language with students.
On or about September 16, 2013, the Member received a second letter of expectation from the Board (attached hereto and marked as Exhibit “C”) which states:
It is the expectation of the Waterloo Region District School Board that teachers maintain a professional relationship with students at all times and not engage in conversations or activities that fall outside of the [sic] those required as part of the professional teacher/student relationship. This is also reflective of the Ontario College of Teachers Standards of Practice for the Teaching Profession and the Ethical Standards for the Teaching Profession.
- The Member resigned from his employment with the Board effective November 28, 2014.
GUILTY PLEA
By this document,2 the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct. The Member pleads guilty to the following allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) 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 the parties 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.
- 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 College Counsel, the Committee rendered an oral decision on November 5, 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(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 14 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(7.3), 1(15), 1(18) and 1(19).
Paragraphs 4-10 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 4-10 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 4, 5 and 9 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). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.
Paragraphs 4-10 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 4-10 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). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.
Paragraphs 4-10 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 receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate and Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar.
PENALTY DECISION
In an oral decision rendered on November 5, 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. Kemp, 2017 ONOCT 68 and Ontario College of Teachers v. Vallée, 2017 ONOCT 75.
The Committee further accepts the submissions of College Counsel that the mandatory penalty provisions set out at section 30.2 of the Act do not apply because this matter was initiated at the College in 2014, prior to the December 2016 amendments to the Act. Nevertheless, the Committee recognizes that it has the authority to order the jointly proposed penalty in accordance with subsections 30(4) and 30(5) of the Act.
The Committee finds that the Member’s egregious misconduct warrants a written reprimand by his peers. Although the Member accepted responsibility for his actions, was cooperative with the College, and has no prior discipline history, his misconduct was nonetheless very serious. The Member’s sexualized behaviour occurred inside and outside of the school setting; it involved [XXX], [XXX] school students in grades [XXX] and [XXX]; it involved several students; and, the Member invited students to his home on more than one occasion and to ride in his car. Prior to the conduct at issue in this case, the Member had received two letters of expectation from his Board regarding boundary issues with students. The written reprimand agreed to by the parties will allow the Committee to 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 further finds that revocation is appropriate in this case. The Member’s misconduct was completely unacceptable, as his conduct was of a sexualized nature. Although the definition of sexual abuse in section 1 of the Act includes more overt acts, such as sexual intercourse or sexual touching, it also includes “(c) behaviour or remarks of a sexual nature by a member towards a student.” The definition does not require that a member intended the remarks or behaviour to be of a sexual nature. In this case, among the sexualized conduct, the Member buttoned up a student’s [XXX] and touched her body in the process. While the Member stated that he did not intend for the touch to be of a sexual nature, there was absolutely no reason for the Member to button up the student’s [XXX] or to touch her body. His conduct was sexual in nature despite his intentions.
Similarly, several students reported that the Member looked at their breasts, buttocks or crotch. While the Member denies that he intended to look at students in a sexual manner or to make them feel uncomfortable, his actions did exactly that. It is completely inappropriate and unacceptable for a member to look at these parts of a student’s body. For students in that age group, attention paid to their bodies in these areas is uncomfortable, degrading and inappropriate, especially from a teacher.
The Member also failed to maintain appropriate professional boundaries with students on multiple occasions. He invited students over to his house to carve pumpkins, eat popsicles, and lie on his couch; he asked a student personal questions about her mother and her mother’s boyfriend; and, he stopped his car and repeatedly asked a student if she would like a ride in his car, until she eventually got in. The student’s initial refusals should have prompted the Member to sense her reluctance and to stop asking. Members of the teaching profession hold a unique position of trust and authority, and as such, they must maintain appropriate boundaries with students at all times. The Member’s behaviour was an abuse of this trusted position and demonstrated a profound lack of professional judgment.
The Committee is also concerned that the Member had received formal warnings from his Board prior to the conduct at issue in this case, but subsequently continued to engage in boundary violations with students. The Member did not learn from his previous mistakes.
Accordingly, the Committee finds that revocation is the appropriate penalty in this case. There is no place in the profession for members who engage in the sexual abuse of students and who abuse their position of trust and authority as the Member has done. Through his concerning conduct, the Member violated the trust placed in him as a teacher by parents, students and the public, and he undermined the reputation of the teaching profession. He has therefore forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario.
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 5, 2018
Alicia Nunn, OCT Chair, Discipline Panel
Marlène Marwah Member, Discipline Panel
Vicki Shannon, OCT Member, Discipline Panel