DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bagshaw 2018 ONOCT 54

Date: 2018-11-15

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

Jason Douglas Bagshaw, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JASON DOUGLAS BAGSHAW (REGISTRATION #510655)

PANEL: Tom Potter, Chair

Rebecca Forte, OCT

John Hamilton, OCT

HEARD: November 15, 2018

Stephanie Sugar of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

Patricia D’Heureux of Cavalluzzo LLP, for Jason Douglas Bagshaw, assisted by Patrick Enright, Student-at-Law

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 November 15, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 29, 2016 (Exhibit 1) was served on Jason Douglas Bagshaw (the “Member”), requesting his presence on July 27, 2016 to set a date for hearing and specifying the allegations. The hearing was subsequently set for November 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 subsection 30(2) 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);¹

(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:

At all material times, Jason Douglas Bagshaw (the “Member”) was 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 in respect to the Member.
At all material times, the Member was employed by the Ottawa Carleton District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Nepean, Ontario.
At all material times, Student 1 and Student 2 were male students at the School.
During the 2014-2015 academic year, the Member communicated with Student 1 and Student 2 online via Instagram about topics unrelated to school or academic work. The Member on several occasions deleted his Instagram account and opened a new Instagram account with a new username. When the Member opened a new account, Student 1 and Student 2 were allowed to follow the Member.
In or around January – February 2014, the Member opened an Instagram account in class to post homework and board work. In June 2014, the Member closed the account.
In September 2014, the Member opened a new account to use with his current class. The Member did not use this account and eventually closed the account.
In January 2015 the Member opened a new Instagram account and allowed Student 1, Student 2 and other students in the [XXX] to follow the Member for two to three weeks before the Member deleted the account.
In January 2015, after the Member closed the account, he re-opened a new account with different privacy settings. The Member told Student 1 about his new account and Student 1 told Student 2 and they became the only two followers of the Member’s new account. The Member closed this account on the Friday of March break 2015. During the 2015 March break, the Member again opened a new account and accepted Student 1’s and Student 2’s request to follow the Member.
The Member posted an inappropriate joke that was a “fill-in-the-blank” type of questionnaire. Student 1 and Student 2 both viewed the joke and posted a comment on the Member’s page. At the time the Member posted the joke, Student 1 and Student 2 were the only two people following the Member. Attached hereto and marked as Exhibit “B” is a copy of the screenshot of the post.
On March 18, 2015, the Member posted about his intended visit to a local [XXX] at the [XXX]. Student 1 and Student 2 were the only followers on the Member’s Instagram account at the time. Attached hereto and marked as Exhibit “C” is a copy of the screenshot of the post.
On April 2, 2015, the parents of Student 1 were performing a routine check on Student 1’s iPod and saw an inappropriate Instagram post/joke that the Member had posted. The parents of Student 1 also saw that Student 1 had taken a picture of himself in his bedroom, at night in the dark and sent it to the Member in the middle of the night. The picture at issue was all black, with no clear image visible. The Member commented on the picture the following morning.
On April 6, 2015, the Member closed this account, after he received the picture from Student 1.
Student 1’s parents reported the matter to the Board and the Ottawa Police.
Following its investigation, the Board found that the Member had failed to respect appropriate boundaries in his electronic communications with Student 1 and Student 2. The Board issued a discipline letter to the Member, which imposed a one-day suspension without pay and required the Member to take a boundaries training course. In addition, the Board set out clear expectations for future interactions with students, including any electronic communications. Attached hereto and marked as Exhibit “D” is a copy of the letter from the Board, dated May 5, 2015. Attached as Exhibit “E” is a copy of the Ontario College of Teachers’ Professional Advisory “Use of Electronic Communication and Social Media.”
The Ottawa Police cleared the occurrence as non-criminal as there was no evidence or allegation of a criminal offence. The Ottawa Police were advised of the outcome of the Board investigation and the disciplinary decision and took no further action.
The Member completed a Professional Boundaries course and otherwise complied with all of the Board requirements set out in its letter of May 5, 2015, and has since continued to teach with no further conduct of this nature. In addition, on his own initiative, between May 6 and October 26, 2015, the Member voluntarily attended twelve 1-hour counselling sessions. His counsellor stated following these sessions that, “There was never any indication that this was grooming behaviour.” Attached hereto and marked as Exhibit “F” is a copy of the counsellor’s report, dated June 22, 2018.

GUILTY PLEA

By this document,² the Member admits the truth of the facts and exhibits referred to in paragraphs 1-16 above (the “Admitted Facts”).
The Member hereby acknowledges that paragraphs 4-11 of 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 – 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 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.

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 allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) 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 rendered an oral decision on November 15, 2018 finding 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) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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 (5), 1(15), 1(18 – unprofessional) and 1(19).

Paragraphs 4-11 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 4-11 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 4-11 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 4-11 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”); and
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) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundaries, subject to the following conditions:

(i) the Member will provide to a 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) upon 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:

(i) stating that the Member has successfully completed the course and reporting 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 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 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 the parties: Ontario College of Teachers v. Erland, 2017 ONOCT 54 and Ontario College of Teachers v. Jaarsma, 2017 ONOCT 71.

Reprimand

The Committee finds that the Member’s inappropriate electronic communications with students warrants a reprimand by his peers. Among other things, the Member repeatedly communicated with two students via Instagram about topics unrelated to school work; he accepted the students’ requests to follow him on social media; he posted an inappropriate joke on social media that these two students were able to see because they were his only followers at the time; and, he commented on a photograph that a student had sent to him, which depicted the student in his dark bedroom in the middle of the night.

Although there was no evidence that the Member’s behaviour constituted grooming, his use of electronic communications and social media with students was nevertheless inappropriate. Members of the teaching profession hold a unique position of trust and authority, and it is inappropriate for members to share information with students online that is unrelated to school activities. Teachers must be cautious when engaging with students online and they must maintain appropriate professional boundaries with students at all times. Teachers should avoid “follow” requests from students and, to minimize the risks inherent with the use of social media, they should limit their electronic communications to established educational platforms, rather than public platforms like Instagram.

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.

Course

The Committee is encouraged that the Member has taken responsibility for his actions by completing a Professional Boundaries course, as required by the Board, by voluntarily attending 12 one-hour counselling sessions, and by participating in the hearing process. Nevertheless, the Committee finds that an additional course of instruction regarding boundaries will assist in the rehabilitation of the Member. The Member previously completed coursework as required by his Board, but the Committee notes that a more current course would be appropriate considering the rate at which technology (including social media platforms) changes. The course will remind the Member that it is necessary to maintain appropriate professional boundaries with students at all times, and it should inform him of the risks of communicating with students via social media so that his future interactions with students remain appropriate. Maintaining professional boundaries in all forms of communication with students is vital to upholding the public trust in the teaching 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: November 15, 2018

Tom Potter

Chair, Discipline Panel