DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

2018 ONOCT 56 Date: 2018-10-31

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

Matthew Francis Chong Yen, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MATTHEW FRANCIS CHONG YEN (REGISTRATION #278008)

PANEL: Bill Petrie, Chair Diane Ballantyne, OCT Shanlee Linton, OCT

HEARD: September 20-21, 2018

Christine Lonsdale of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

Matthew Francis Chong Yen, self-represented

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 September 20, 2018, at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated June 24, 2015 was served on Matthew Francis Chong Yen (the “Member”) requesting his presence on September 8, 2015 to set a date for hearing, and specifying the allegations. The hearing was subsequently set for September 20, 2018 and continued on September 21, 2018.

The Member was self-represented but he was not in attendance during the hearing.

Counsel for the College submitted an Affidavit of Amy Leung (Exhibit 2) sworn on September 19, 2018, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty and costs being sought by the College. In this affidavit, Ms. Leung, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. During the afternoon of September 19, 2018 (the day before the hearing), the Member advised College Counsel that he would not be attending the scheduled hearings (see Exhibit 2 at Tab O).

Based on this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty and costs being sought by the College. The Committee delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.

PUBLICATION BAN

The Committee ordered a publication ban pursuant to section 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”). Accordingly, 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.

MOTION TO COMBINE PROCEEDINGS INVOLVING SIMILAR QUESTIONS

Before leading any evidence in this matter, College Counsel informed the Committee that the Member had received two Notices of Hearing: the first was dated June 24, 2015 (Exhibit 1) and the second was dated August 23, 2018 (Exhibit 3). Both Notices of Hearing involved similar allegations and both were returnable before the Committee on September 20, 2018 and September 21, 2018. The College brought an oral motion seeking the Committee’s permission to hear both matters together, in accordance with sub-rules 4.02(3)(a) and 5.05(4)(b) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”). The Rules also refer to section 9.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which provides the following:

9.1 (1) If two or more proceedings before a tribunal involve the same or similar questions of fact, law or policy, the tribunal may,

(a) combine the proceedings or any part of them, with the consent of the parties;

(b) hear the proceedings at the same time, with the consent of the parties;

(c) hear the proceedings one immediately after the other; or

(d) stay one or more of the proceedings until after the determination of another one of them.

Because the parties did not consent to combining the proceedings or to hearing them at the same time, College Counsel requested that the Committee hear the proceedings one immediately after the other for reasons of efficiency. Specifically, the College requested that the Committee first hear the matter relating to the 2015 Notice of Hearing. If a finding of professional misconduct were to be made in that matter, the College requested that the Committee then receive penalty submissions, but reserve its decision with respect to penalty. Then, the College would lead evidence with respect to the 2018 Notice of Hearing and, if the Committee were to make a finding of professional misconduct in relation to that matter, additional penalty submissions would be made and the Committee could then make its orders.

Independent Legal Counsel advised the Committee that it had the authority to hear the two matters in the manner proposed by College Counsel. According to Independent Legal Counsel, although the matters could be heard consecutively for reasons of procedural efficiency, the two matters must nevertheless be heard in separate hearings and the evidence from one hearing could not be used in the other hearing.

The Committee considered the submissions of College Counsel and the advice of Independent Legal Counsel and decided to hear the two matters consecutively for reasons of efficiency, because College Counsel submitted that she anticipated that the Committee could hear both matters over the course of the two scheduled hearing days.¹ However, the Committee determined that if it were to make a finding of professional misconduct in the first matter, it would then make its decision with respect to penalty before beginning the second matter. The Committee determined that it would be appropriate for it to be seized on both matters, but that it was nevertheless important to ensure that the matters be heard entirely separately because they involve two sets of allegations that occurred in different school years and at different schools.

This Decision, Reasons for Decision and Order relates only to the allegations set out in the first Notice of Hearing dated June 24, 2015 (Exhibit 1).

OVERVIEW

The Member was a [XXX] teacher at all materials times. During the 2011-2012 and 2013-2014 academic years, he allegedly used inappropriate language in class, referred to inappropriate subject matters in class, and behaved inappropriately in class on a number of occasions. He also allegedly belittled a student by calling her an “idiot” and a “douche”, and did not allow her to take a [XXX] test as scheduled.

The Committee’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee found that the Member engaged in professional misconduct as set out below. In particular, the Member breached subsections 1(5), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Committee did not find that the Member breached subsections 1(7) or 1(7.2) of Ontario Regulation 437/97.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated June 24, 2015 are as follows:

IT IS ALLEGED that Matthew Francis Chong Yen is guilty of professional misconduct as defined in subsection 30(2) 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 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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Matthew Francis Chong Yen is a member of the College.

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

3. During the 2011-2012 and 2013-2014 academic years, the Member:

(a) used inappropriate language and subject matter in class, including, but not limited to sluts, whores, drugs, body parts and sexual matters;

(b) jumped on desks;

(c) slammed a metre stick on desks;

(d) made bodily noises during class, such as “burping” and “farting”; and

(e) “humped” a wall.

4. On or about January 14, 2014, the Member:

(a) told a female student that she was a “fucking idiot” and a “douche”;

(b) did not allow the same female student to take a [XXX] test as scheduled; and

(c) made comments directed to students with lower averages such as: “only 5 people will actually pass this course” and “let me teach these top 6 first and the rest of you can pay attention if you want, doesn’t really matter.”

THE MEMBER’S PLEA

As the Member was not present, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

THE EVIDENCE

The College presented oral and documentary evidence in order to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Committee’s reasons for decision below. The following is a brief summary of the College’s evidence.

Oral Evidence

The College called four witnesses: (1) Anthony Vandyke (“Principal Vandyke”); (2) Patrick Abtan (“Vice-Principal Abtan”); (3) Steven Gardanis (“Vice-Principal Gardanis”); and (4) a female student of the Member’s during the 2011-2012 and 2013-2014 academic years (“Student 1”).

As the Member chose not to participate in the hearing, no evidence was presented in his defence.

Principal Vandyke’s Testimony

Principal Vandyke was the Member’s principal at the School at all material times. He is an experienced educator who taught from 1990 until 2002. He served as a vice-principal from 2003 until 2006, and has served as a principal since 2006. He has also taught part two of the Principal’s Qualification Program at York University since 2015.

Principal Vandyke described the School as a very diverse, multicultural, technical school. He testified that students needed considerable support both academically and socioeconomically in order to be successful. Principal Vandyke supervised the Member from 2006 until the 2013-2014 academic year.

Principal Vandyke testified that he received several complaints about the Member from parents and students and that he investigated these complaints by interviewing those involved, including the Member, and by consulting with the Human Resources Department of the Board. The complaints generally involved the Member’s use of inappropriate language (sometimes directed at students), his reference to inappropriate topics in class, and his inappropriate behaviour, as set out in the Notice of Hearing. According to Principal Vandyke, the Member’s conduct formed part of a concerning pattern of behaviour. The Member had received a letter of expectation from School administration in December 2010 (see Exhibit 18), a letter of reprimand from School administration in May 2013 (see Exhibit 7) and a letter of discipline from School administration in February 2014, in addition to a three-day, unpaid suspension (see Exhibit 13).

Despite the considerable issues that Principal Vandyke raised regarding the Member’s teaching practice, he nevertheless testified that the Member was a passionate teacher who was dedicated to his students. According to the principal, although the Member’s effort and desire were evident, he fell short of meeting expectations when it came to certain aspects of his daily practice, including the way that he reacted to and handled situations with students and his use of inappropriate language and behaviour.

Participant Expert

On September 20, 2018, College Counsel sought to qualify Principal Vandyke as a participant expert in the area of classroom management. The Committee granted this request for the following reasons.

The College demonstrated that the four threshold requirements for the admissibility of expert evidence have been met, as established the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.

First, the Committee finds that Principal Vandyke’s evidence is relevant to the issue of whether or not the Member’s classroom management met the standards of the profession. The principal supervised the Member and investigated his conduct on several occasions.

Second, Principal Vandyke’s evidence is necessary because the Committee must receive expert evidence regarding the standards of the profession in cases such as this, where the Member’s conduct is not so egregious that it is self-evidently misconduct. By way of contrast, expert evidence is not required in cases involving the physical or sexual abuse of students, which are clear examples of professional misconduct (see Novick v. Ontario College of Teachers, 2016 ONSC 508 at para. 71).

Third, there is no exclusionary rule preventing the admissibility of Principal Vandyke’s expert evidence.

Fourth, the Committee finds that Principal Vandyke is a properly qualified expert, given his extensive experience as an educator and an administrator.

The College further demonstrated that Principal Vandyke meets the criteria established by the Ontario Court of Appeal for serving as a “participant expert.” In Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), the Court defines participant experts as those who “form opinions based on their participation in the underlying events […] rather than because they were engaged by a party to the litigation to form an opinion” (Westerhof at paragraph 6). The Court goes on to explain, at paragraph 60, that:

a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents […] where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

The Committee finds that Principal Vandyke meets these criteria. He has special skill, knowledge, training, or experience in the area of classroom management. In addition, he was not hired as an expert witness by the College. Finally, he testified that he had the opportunity to observe the Member’s teaching performance on many occasions and that he formed his opinion while observing the Member’s teaching performance and competencies as part of the ordinary exercise of his duties as principal.

Moreover, it has become a common practice for panels of the Discipline Committee to qualify witnesses as participant experts, where appropriate. College Counsel specifically referred the Committee to Ontario College of Teachers v. Reinders, 2017 ONOCT 62, in which another panel of the Discipline Committee qualified a principal as a participant expert in similar circumstances.²

Accordingly, the Committee qualified Principal Vandyke as a participant expert in the area of classroom management.

Vice-Principal Abtan’s Testimony

Vice-Principal Abtan was one of the Member’s vice-principals at the School at all material times. He is an experienced educator who taught from 1986 until 1998. He has served as a vice-principal at several schools since 1998, including at the Member’s School from 2009 until 2016.

Vice-Principal Abtan had experience conducting Teacher Performance Appraisals (“TPA”), having evaluated approximately 15-20 teachers annually during his time as an administrator, and he conducted a TPA of the Member in November 2013 (see Exhibit 22). Although the Member received a satisfactory overall rating, the vice-principal included a comment in his evaluation indicating that he had discussed with the Member that he needed to be “careful with utterances in class” and use “appropriate language that cannot be misinterpreted” (see Exhibit 22 at page 17). Vice-Principal Abtan testified that he had included this language in the Member’s TPA because there were instances where the Member had made inappropriate comments in class.

The vice-principal testified that he had attended a couple of meetings with Principal Vandyke, the Member and his teaching federation representative regarding the Member’s alleged inappropriate conduct. One of these meetings took place on December 11, 2013 to discuss allegations of the Member’s use of profanity and inappropriate language in his classroom (see Exhibit 23). A similar meeting was held on January 22, 2014 regarding the allegations set out at paragraph 4 of the Notice of Hearing. Vice-Principal Abtan took notes for Principal Vandyke during this meeting (see Exhibit 12).

Vice-Principal Abtan testified that he thought that it was likely that the allegations made against the Member had occurred and he believed that they were serious allegations. The vice-principal added that he thought that the Member was a good teacher who was devoted to his students, but that he used inappropriate language at times and he had trouble controlling what he said.

Participant Expert

For similar reasons to those set out above with respect to Principal Vandyke, the Committee granted the College’s request to qualify Vice-Principal Abtan as a participant expert in the area of classroom management. Vice-Principal Abtan’s evidence was relevant and necessary, there was no exclusionary rule preventing the admissibility of his expert evidence, and he was a properly qualified expert given his experience as an educator and an administrator. Vice-Principal Abtan has special skill, knowledge, training, or experience in the area of classroom management, he was not hired as an expert witness by the College, he had the opportunity to observe the Member’s teaching performance (including as part of the TPA process) and he formed opinions about the Member’s classroom management as part of the ordinary exercise of his duties as vice-principal.

Vice-Principal Gardanis’s Testimony

Vice-Principal Gardanis was another of the Member’s vice-principals at the School. He is an experienced educator who taught at the secondary level for nearly 20 years before transitioning into administration. He began his first position as a vice-principal in 2012 at the Member’s School, and he has served as a vice-principal at that and other schools since then.

Concerns regarding the Member’s teaching practice were brought to Vice-Principal Gardanis’s attention during the 2013-2014 academic year. On October 25, 2013, the vice-principal took notes for Principal Vandyke at a meeting with the Member, the principal and the branch president of the Member’s teaching federation (see Exhibit 9). The meeting was about the Member’s lack of professionalism and use of inappropriate language.

On January 14, 2014, Vice-Principal Gardanis met with the father of a student who had complained about the Member’s inappropriate behaviour alleged at paragraph 4 of the Notice of Hearing (see Exhibit 25). The vice-principal then spoke with the student (“Student 2”) about her complaint and asked her to write a statement about what had happened (see Exhibit 10). Vice-Principal Gardanis then reported this incident to Principal Vandyke and had no other involvement dealing with the situation.

Like the other two School administrators who testified, Vice-Principal Gardanis explained that the Member was a hard-working and passionate teacher, but that he made some inappropriate comments and gestures.

Participant Expert

For similar reasons to those set out above with respect to Principal Vandyke and Vice-Principal Abtan, the Committee granted the College’s request to qualify Vice-Principal Gardanis as a participant expert in the area of classroom management. Vice-Principal Gardanis’s evidence was relevant and necessary, there was no exclusionary rule preventing the admissibility of his expert evidence, and he was a properly qualified expert given his experience as an educator and an administrator. Vice-Principal Gardanis has special skill, knowledge, training, or experience in the area of classroom management, he was not hired as an expert witness by the College, he had the opportunity to observe the Member’s teaching performance and he formed opinions about the Member’s classroom management as part of the ordinary exercise of his duties as vice-principal.

Student 1’s testimony

Student 1 testified briefly about her concerns with the Member when he was her Grade [XXX] and Grade [XXX] [XXX] teacher during the 2011-2012 academic year and at the beginning of the 2013-2014 academic year. At the time of the hearing, Student 1 was [XXX] years old and worked full time at a restaurant. Student 1 had failed Grade [XXX] and she did not want the Member to be her Grade [XXX] teacher. On October 16, 2013, Student 1 wrote a letter of complaint to Principal Vandyke (see Exhibit 8), recounting her concerns with the Member from two years earlier (when she was in his Grade [XXX] class). Student 1’s concerns closely resembled the allegations set out at paragraph 3 of the Notice of Hearing. She testified that she felt offended, targeted and humiliated by the Member. She further testified that she wrote the letter of complaint to Principal Vandyke because she wanted to change classes and because she was asked to record her reasons for this. She testified that she did not believe that she would pass Grade [XXX] if she remained in the Member’s class.

Documentary Evidence

In addition to the evidence introduced through the College’s witnesses, the Committee also admitted the following documents into evidence, on the request of College Counsel:

• the Registered Member Information of Matthew Francis Chong Yen (Exhibit 26);

• email communication between Vice-Principal Abtan and Principal Vandyke dated December 8, 2010 (Exhibit 27);

• email communication between the Member, Principal Vandyke and George Baumann (the Member’s teaching federation representative) dated January 21, 2014 (Exhibit 28);

• Ontario Regulation 437/97 – Professional Misconduct (Exhibit 29);

• Affidavit of Amy Leung, sworn September 19, 2018, regarding her unsuccessful attempts to contact the students involved in the allegations set out at paragraphs 3 and 4 of the Notice of Hearing (Exhibit 30); and

• Handwritten notes from an unidentified author, dated February 4, 2014, regarding the imposition of the Member’s three-day, unpaid suspension (Exhibit 31).

Although the Committee recognizes that the rules of evidence that apply to the College’s discipline hearings are relaxed and that documents that are relevant to the subject matter of a proceeding are generally admissible (see Ontario College of Teachers v. Ostainvil, 2016 LNONCTD 94 at para. 66), the Committee must nevertheless determine the weight to assign to such documents. The reliability of the evidence is an important consideration in this regard.

The Committee finds that Exhibit 26 is a reliable and uncontroversial document. The College maintains an up-to-date public register profile of its members on its website and there is no reason to question the reliability of this document.

The Committee gives no weight to the email communications entered as Exhibits 27 and 28. The first email thread is dated December 8, 2010, which precedes the allegations set out in the Notice of Hearing by at least one year. The second email thread could have been addressed by Principal Vandyke during his testimony but it was not. The Committee therefore received insufficient context to rely on this email and notes that the College could have entered this evidence through its witness.

With respect to Exhibit 29, the Committee does not need to assess the weight of this exhibit because it is a piece of legislation. The Committee may rely on Ontario Regulation 437/97 as needed, regardless of whether it has been made an exhibit.

With respect to Exhibit 30, the Committee accepts the affidavit of Ms. Leung, who outlined her attempts to contact the students involved in the allegations set out in the Notice of Hearing. The Committee recognizes that attempts were made to contact several students, but that the College did not receive any response from these students. Ms. Leung’s affidavit is reliable as it was made under oath and for no improper purpose.

The Committee gives no weight to Exhibit 31, which is a handwritten note from an unidentified author. Principal Vandyke and Vice-Principal Abtan’s names appear in these notes and College Counsel could have asked either of these witnesses about the document, but did not do so. The notes have not been identified and the Committee therefore does not find them to be reliable.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the evidence presented to the Committee proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Committee should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

College Counsel reviewed the relevant evidence with regard to each of the particulars and the heads of misconduct alleged in the Notice of Hearing and submitted that the four College witnesses were credible. College Counsel noted that the three School administrators who testified were particularly fair in their evidence, in that they testified that the Member had many good qualities as a teacher but that the repeated conduct at issue was nevertheless inappropriate. With respect to Student 1’s evidence, College Counsel submitted that she was an honest and straightforward witness, despite the fact that she had failed the Member’s Grade [XXX] class and wanted to be transferred out of his class in Grade [XXX].

The Committee asked College Counsel to provide additional submissions regarding the allegations of verbal and psychological or emotional abuse in particular. Specifically, the Committee asked College Counsel to provide a definition of abuse or to set out the criteria for abuse. College Counsel submitted that a finding of “abuse” reflects the severity of the conduct and the impact that the conduct has on a student. According to College Counsel, inappropriate language directed at a student could be found to be abusive. College Counsel further suggested that she could search for a guiding passage from the case law to assist the Committee; however, the College did not ultimately provide the Committee with a legal definition of abuse or with any additional jurisprudential guidance.

DECISION ON FINDING

Onus and standard of proof

The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Committee rendered an oral decision on September 21, 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) and 1(19).

The Committee did not find that the College proved that the Member’s conduct contravened subsections 1(7) or 1(7.2) of Ontario Regulation 437/97.

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Committee first addresses the credibility of the College’s witnesses. It then sets out its factual findings and explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

Credibility of the College’s witnesses

The Committee found the three School administrators to be credible. Their evidence was consistent, and it was fair and balanced. For instance, all three administrators noted that the Member was a devoted teacher; however, they explained that he had trouble controlling what they said.

As set out in greater detail below, the Committee had some concerns regarding Student 1’s credibility. She wanted to transfer out of the Member’s Grade [XXX] class one month into the school year, because she worried that she would not pass his class. In order to justify her late request for a transfer out of the Member’s class, Student 1 wrote a letter to Principal Vandyke setting out her concerns – most of which stemmed from her experience with the Member in Grade [XXX], two years earlier. The Committee finds that Student 1 may have had reason to exaggerate portions of her evidence because she was motivated to transfer out of the Member’s class. Due to these concerns regarding Student 1’s credibility, the Committee accepted her evidence only to the extent that it was consistent with the investigation results of School administration.

Factual Findings

For the reasons set out below, the Committee finds, on a balance of probabilities, that the Member engaged in the conduct alleged at paragraphs 3(a), 3(b), 3(c), 3(e), 4(a) and 4(b) of the Notice of Hearing. The College has not provided sufficient evidence to prove that the Member engaged in the conduct alleged at paragraphs 3(d) and 4(c) of the Notice of Hearing.

3(a): During the 2011-2012 and 2013-2014 academic years, the Member used inappropriate language and made reference to inappropriate subject matters including “sluts, whores, drugs, body parts and sexual matters”

Evidence

The Committee received consistent, uncontradicted evidence from Student 1 and the School administrators who testified regarding the Member’s use of inappropriate language and subject matter in class.

In Student 1’s written statement to Principal Vandyke dated October 16, 2013, she reported that the Member used “every type of foul language” and discussed inappropriate topics, including “sluts, whores, drugs, body parts and sexual things” (Exhibit 8). During her oral testimony, Student 1 explained that the Member’s classroom discussions were not about [XXX]; they were about sexualizing women, drugs and body parts.

Principal Vandyke also received a complaint from a parent about the Member’s use of profanity in class. The parent provided the following example of the Member’s inappropriate [XXX] lesson, as reported to her by her daughter: “if you have six vials of crack and you get X number of vials from a rival gang member, how many do you end up with?” (Exhibit 6).

Principal Vandyke testified that he received this parent complaint, investigated it by interviewing the student involved and the Member, and concluded that the Member made the inappropriate comments alleged. As a result, Principal Vandyke sent the Member a letter of reprimand dated May 3, 2013, in which he concluded that the Member swore in class on more than one occasion and used the “vials of crack” example cited above during a [XXX] lesson (see Exhibit 7). Principal Vandyke further testified that the example used by the Member during his [XXX] lesson was unacceptable and that he could have used any number of other appropriate examples to make the lesson relatable for students. According to Principal Vandyke, it was inappropriate to use gang-related stereotypes, particularly in a multicultural school, because it wrongly implied that students were gang members or understood gang culture.

Both Vice-Principal Abtan and Vice-Principal Gardanis testified that their primary concerns with the Member was that he used inappropriate language at times.

Conclusion

The Committee finds, on a balance of probabilities, that the Member used inappropriate language and made reference to inappropriate subject matters, as alleged at paragraph 3(a) of the Notice of Hearing. The Committee received uncontradicted evidence in relation to this allegation. Although the letter of concern from the parent (Exhibit 6) constitutes hearsay evidence (because neither the parent nor her daughter, who had relayed the information to her about the Member’s use of profanity, testified), the Committee notes that Principal Vandyke investigated the matter following his receipt of this letter and he found that the concerns were substantiated. The Committee therefore finds that this hearsay evidence was reliable.

Principal Vandyke’s evidence regarding this allegation is also hearsay because he was not in the Member’s classroom when these comments were made, but the Committee finds that his evidence was reliable. The principal conducted a fulsome investigation into the Member’s use of inappropriate language. He interviewed students separately, he made contemporaneous notes, he did not ask leading questions during his interviews, and he raised the issues with the Member and received the Member’s response. Principal Vandyke determined that the concerns regarding the Member’s use of inappropriate language were substantiated. Moreover, the Committee finds that Principal Vandyke’s testimony was credible because he was fair and balanced in his testimony and he did not overstate his evidence. His evidence was consistent with that of his two vice-principals who testified that they had concerns with the Member’s use of inappropriate language at times. Finally, Principal Vandyke formally disciplined the Member by sending him a letter of reprimand following his investigation.

The Committee therefore finds that it is more likely than not that the Member engaged in the alleged conduct.

3(b): During the 2011-2012 and 2013-2014 academic years, the Member jumped on desks

Evidence

Principal Vandyke testified that the Member jumped on desks as alleged at paragraph 3(b) of the Notice of Hearing, and this was documented in Vice-Principal Gardanis’s October 25, 2013 notes from a meeting between the Member, his teaching federation representation and School administration (see Exhibit 9). According to Principal Vandyke, the Member admitted (during the October 25, 2013 meeting) that he had jumped on desks, but he qualified this admission by stating that he did so in order to explain the [XXX] concept of angles of depression.

Conclusion

The Committee finds that the College has proven, on a balance of probabilities, that the Member jumped on desks as alleged. The Member admitted that he did so during his meeting with School administration, but he provided an explanation for why he did so.

3(c): During the 2011-2012 and 2013-2014 academic years, the Member slammed a metre stick on desks

Evidence

The Committee received consistent evidence from Student 1 and Principal Vandyke regarding the allegation set out at paragraph 3(c) of the Notice of Hearing. No evidence was received to contradict this evidence.

In her written statement to Principal Vandyke dated October 16, 2013, Student 1 indicated that the Member’s classroom behaviour was “violent and immature” and included “slamming metre sticks on desks” (Exhibit 8). She also testified that the Member slammed metre sticks on desks.

During the Member’s meeting with School administration and his teaching federation representative on October 25, 2013, Principal Vandyke relayed the concern that the Member had slammed a metre stick on desks but the Member did not provide any explanation for this behaviour (see Exhibit 9). Principal Vandyke also testified that he had spoken to other students about this conduct and that they confirmed Student 1’s report that the Member had slammed a metre stick on desks.

Conclusion

The Committee finds that the College has proven, on a balance of probabilities, that the Member slammed a metre stick on desks as alleged. The Committee received uncontradicted evidence to this effect. Student 1 initially reported this to Principal Vandyke, the principal then met with the Member to relay the concern, and the Committee received no evidence that the Member denied this allegation when he was confronted with it by the principal.

Although Principal Vandyke’s evidence that other students confirmed this behaviour constitutes hearsay evidence (because those students did not testify), the Committee notes that hearsay evidence is admissible in discipline hearings and finds this hearsay evidence to be reliable. It was consistent with Student 1’s recorded statement (Exhibit 8) and the Member did not specifically deny slamming a metre stick on desks when his principal relayed the concern to him.

3(d): The College has not proven that, during the 2013-2014 academic years, the Member made bodily noises during class, such as “burping” and “farting”

Evidence

Student 1 testified that the Member burped and farted aloud in class and she reported this to Principal Vandyke in her written statement dated October 16, 2013 (see Exhibit 8). No other witness testified about this allegation, although Vice-Principal Gardanis’s notes from the October 25, 2013 meeting between the Member, his teaching federation representative and School administration indicate that this allegation was raised with the Member, who denied making any bodily noises in class (see Exhibit 9).

Conclusion

The Committee finds that the College has presented insufficient evidence to prove this allegation on a balance of probabilities. The College had the opportunity to ask Principal Vandyke and Vice-Principal Gardanis about this allegation, but did not do so. The only evidence elicited about this allegation came from Student 1.

While the Committee found other portions of Student 1’s evidence to be credible, her evidence in relation to this particular allegation is not credible for the following reasons. As set out above, Student 1 may have had a reason to exaggerate portions of her statement to Principal Vandyke because she wanted to be transferred out of his [XXX] class in Grade [XXX], one month into the School year, after doing poorly on her first evaluation. In her letter to Principal Vandyke, Student 1 wrote: “Mr. Vandyke, please, switch me or let me switch into another class because I know I won’t do well or pass if I remain in Mr. Chong Yen’s class” (Exhibit 8). Therefore, the Committee only accepts Student 1’s evidence to the extent that it is consistent with the investigation results of School administration. Where Principal Vandyke conducted an investigation and corroborated Student 1’s version of events after interviewing the Member, other students, or both (as was the case, for instance, with the allegations set out at paragraphs 3(a), (b) and (c) of the Notice of Hearing), the Committee is satisfied that Student 1’s account is reliable.

In this instance, however, no member of the School administration corroborated the allegation that the Member burped and farted aloud in class, and this concern is not raised in any of the formal letters of reprimand or discipline that the Member received from School administration. Moreover, the Member expressly denied this allegation in his meeting with School administration on October 25, 2013 (see Exhibit 9). The Committee therefore does not find that Student 1’s uncorroborated account has been proven on a balance of probabilities.

3(e): During the 2011-2012 and 2013-2014 academic years, the Member “humped” a wall

Evidence

The Committee received consistent evidence from Student 1 and Principal Vandyke regarding the allegation set out at paragraph 3(e) of the Notice of Hearing. No evidence was received to contradict this evidence.

In her written statement to Principal Vandyke dated October 16, 2013, Student 1 indicated that the Member’s “immature” classroom behaviour included “humping the corner of the wall” (Exhibit 8). She also testified that the Member humped a wall in class.

During the Member’s meeting with School administration and his teaching federation representative on October 25, 2013, Principal Vandyke relayed the concern that the Member’s alleged inappropriate actions included humping a wall in class, but the Member did not provide any explanation for this behaviour at the time (see Exhibit 9). Principal Vandyke also testified that he had spoken to other students about this conduct and that they confirmed Student 1’s report that the Member had humped a wall in class.

Conclusion

The Committee finds that the College has proven, on a balance of probabilities, that the Member humped a wall as alleged. The Committee received uncontradicted evidence in relation to this allegation. Student 1 initially reported this incident to Principal Vandyke, the principal then met with the Member to relay the concern, and the Committee received no evidence that the Member denied this allegation when confronted with it by the principal.

Although Principal Vandyke’s evidence that other students confirmed this behaviour constitutes hearsay evidence, the Committee finds this hearsay evidence to be reliable. It was consistent with Student 1’s recorded statement (Exhibit 8) and oral testimony. In addition, the Member did not specifically deny humping a wall when his principal relayed this unusual concern to him. The Committee finds that Student 1’s account of this incident is reliable because it is consistent with the results of Principal Vandyke’s investigation.

4(a): On or about January 14, 2014, the Member told a female student (Student 2) that she was an “idiot” and a “douche”

Evidence

The Committee received evidence from the three School administrators who testified regarding the incident alleged at paragraph 4(a) of the Notice of Hearing. Vice-Principal Gardanis initially received a complaint from Student 2’s father on January 14, 2014. The father was concerned that the Member degraded and insulted students, including his daughter. Vice-Principal Gardanis took notes during his meeting with the father and during his subsequent follow-up with Student 2 (see Exhibit 25).

When he followed up with Student 2, Vice-Principal Gardanis asked her to write her version of what had occurred in class on January 14, 2014. The student’s statement was entered as Exhibit 10. In her statement, the Student 2 wrote that the incident occurred during [XXX] class on the day of a test. The student did not have a calculator and asked to borrow the Member’s calculator for the test. According to Student 2’s statement, the Member became very angry that she did not have her own calculator and he swore at her in front of the class. Student 2 said that the Member called her a “fucking idiot” and a “douche” among other insults (see Exhibit 10).

Vice-Principal Gardanis reported the incident to Principal Vandyke, who then investigated. As part of his investigation, Principal Vandyke interviewed students who were in the class during the incident, and he took notes of what they told him (see Exhibit 11). The students told the principal that the Member was angry and yelling at Student 2. They reported that both the Member and Student 2 called each other a “douche” and a couple of students reported that they heard the Member call Student 2 an “idiot”. Principal Vandyke’s notes from his student interviews do not indicate that the Member used the term “fucking idiot”.

On January 22, 2014, Principal Vandyke met with the Member, his teaching federation representative and Vice-Principal Abtan (who took notes during the meeting) to address this incident. Vice-Principal Abtan’s notes from this meeting were entered as Exhibit 12. During the meeting, the Member denied using the “F-word” and he explained that Student 2 called him a “douche” first, to which he responded by asking her what the term “douche” had to do with lending or taking away a calculator (see Exhibit 12 at page 26). Principal Vandyke reminded the Member of professional expectations during the meeting and told him that he was expected to act professionally and appropriately even if a student initiated the inappropriate behaviour.

Vice-Principal Abtan testified that, after being involved in the investigation regarding this allegation, he believed that Student 2 called the Member a “douche” first, but that the Member likely responded by using the inappropriate language alleged.

As a result of this incident, Principal Vandyke sent the Member a letter of discipline dated February 4, 2014 (see Exhibit 13). In this letter, the principal shared the results of his investigation with the Member and concluded that, on January 14, 2014, the Member directed inappropriate language, including profanities, at a female student in his [XXX] class. The Member was accordingly suspended for three days without pay.

Conclusion

For the following reasons, the Committee finds that the College has proven, on a balance of probabilities, that the Member told Student 2 that she was a “douche” and an “idiot”, as alleged at paragraph 4(a) of the Notice of Hearing. The Committee does not, however, find that the Member used the term “fucking idiot” because the evidence with respect to that profanity was inconsistent.

The “douche” comment

With respect to the “douche” comment, the Committee recognizes that Student 2’s statement (Exhibit 10) is hearsay evidence because the student did not testify. The Committee, however, notes that the College made several attempts to contact Student 2 before the hearing, as set out in the Affidavit of Amy Leung (Exhibit 30) sworn September 19, 2018. Student 2 did not respond to the College’s attempted communications and the Committee therefore accepts that the Student’s hearsay evidence was the best available evidence in relation to this allegation.

Moreover, the Committee finds that this hearsay evidence is reliable for a number of reasons. First, Student 2’s statement was corroborated by the results of Principal Vandyke and Vice-Principal Abtan’s investigation. Vice-Principal Abtan concluded that the Member likely made the inappropriate comments, and the Committee found his testimony in this regard to be credible because it was fair, balanced and consistent with Principal Vandyke’s evidence. After conducting a fulsome investigation, Principal Vandyke also concluded that the Member directed inappropriate language, including profanities, at Student 2 in his [XXX] class. The Committee finds that the results of the principal’s investigation were reliable because of the nature of the investigation. Principal Vandyke met separately with several students who were present during the incident, he did not ask them leading questions, and he documented his interviews by taking contemporaneous notes. Based on his conclusions, Principal Vandyke sent the Member a letter of discipline, which included a three-day unpaid suspension (see Exhibit 13).

Second, Principal Vandyke interviewed a number of students as part of his investigation, and they consistently reported to him that the Member was either angry or yelling in class and that there was an exchange between the Member and Student 2 in which the two of them called each other a “douche” (see Exhibit 11). While these students’ evidence is also hearsay, the Committee finds that it is reliable. The students were reporting a serious allegation to their principal as part of a formal investigation, and the Committee is not aware of any reason they would have had to fabricate their accounts. Moreover, the students’ accounts were consistent with each other.

Third, the Member admitted that he used the word “douche” during the incident with Student 2, in his January 22, 2014 meeting with School administration (see Exhibit 12). Although the Member explained to School administration that he did not call Student 2 a “douche” but rather responded to the student’s insult by asking her what “douche” had to do with her request to borrow a calculator, the Committee does not accept this explanation. The Member’s explanation is inconsistent with the accounts of the students who witnessed this incident and who reported to Principal Vandyke that the use of the word “douche” was part of an angry exchange between the Member and Student 2. While Student 2 may have initiated the exchange by using the word “douche” first, the totality of the evidence does not support the Member’s explanation that he calmly responded to the student by asking her why she used the term “douche”.

The Member had the opportunity to attend the hearing and to testify in his defence, but he chose not to do so. The Committee therefore received insufficient evidence to support his version of events. Based on Student 2’s written statement, the sworn testimony of Principal Vandyke and Vice-Principal Abtan, and the documented results of their investigation, the Committee finds on a balance of probabilities that the Member called Student 2 a “douche”.

The “fucking idiot” comment

The Committee finds, on a balance of probabilities, that the Member called Student 2 an “idiot” but not a “fucking idiot” for the following reasons. First, the Member was presented with the allegations regarding the “douche” comment and the “fucking idiot” comment at his January 22, 2014 meeting with School administration. During this meeting, he denied having called the student a “douche” and he denied having used the word “fucking”, but he did not deny calling her an idiot (see Exhibit 12).

Second, at least two students interviewed by Principal Vandyke as part of his investigation told the principal that they heard the Member call Student 2 an idiot. The Committee finds that this hearsay evidence is reliable for the same reasons as those set out above. The students did not, however, report that the Member used the word “fucking”. Although Principal Vandyke told the Member during the January 22, 2014 meeting that other students had consistently told him that the member used the word “fucking” (see Exhibit 12 at page 29), there is insufficient evidence to support this assertion based on the totality of the evidence before the Committee.

Third, while the Committee accepts Student 2’s statement to the extent that it says that the Member called her an idiot (which is consistent with the accounts of other students), it does not accept her uncorroborated assertion that the Member called her a “fucking idiot”. This evidence is inconsistent with the evidence of the other students who witnessed the incident and whom the principal interviewed, and it is inconsistent with the Member’s denial of the use of the word “fucking”.

4(b): On or about January 14, 2014, the Member did not allow a female student (Student 2) to take a [XXX] test as scheduled

Evidence

The Committee received consistent, uncontradicted evidence from Principal Vandyke, Vice-Principal Abtan and Vice-Principal Gardanis who testified that the Member did not allow Student 2 to take a [XXX] test as scheduled on or about January 14, 2014. Principal Vandyke testified that he was concerned about this issue and he explained that he did not want the student to be penalized because she was not allowed to write the test.

The Committee also received documentary evidence that supported the testimony of the School administrators in relation to this allegation. Student 2’s father raised the concern with Vice-Principal Gardanis that the Member did not let his daughter write the [XXX] test. Vice-Principal Gardanis recorded his notes of the phone conversation with the father (see Exhibit 25). Following the father’s complaint, Vice-Principal Gardanis followed up with Student 2 and asked her to write her account of the issue. In her written statement, Student 2 noted that the Member did not allow her to write the [XXX] test (see Exhibit 10).

Vice-Principal Gardanis then reported this issue to Principal Vandyke, who investigated further. Among other things, he interviewed students who were in the class at the time of this incident. One of the students confirmed to Principal Vandyke that the Member did not let Student 2 take the [XXX] test (see Exhibit 11). Finally, when Principal Vandyke met with the Member, his teaching federation representative and Vice-Principal Abtan on January 22, 2014, this issue was raised with the Member and he did not deny it (see Exhibit 12).

Conclusion

The Committee finds, on a balance of probabilities, that the Member did not allow Student 2 to take a [XXX] test as scheduled, on or about January 14, 2014, as alleged at paragraph 4(b) of the Notice of Hearing. The Committee received consistent and uncontradicted evidence in relation to this allegation from all three School administrators who testified. The Committee found the administrators’ evidence to be credible given their fair, balanced, plausible and consistent testimony in relation to this allegation. Their testimony was also supported by the above-noted documentary evidence (see Exhibits 11 and 25), which the Committee finds to be reliable hearsay evidence given that it was entirely consistent with the totality of the evidence the Committee received in relation to this issue. The Member was given the opportunity to address this allegation during his meeting with School administration on January 22, 2014 (see Exhibit 12), but there is no evidence that he denied this allegation at the time.

4(c): The College has not proven that, on or about January 14, 2014, the Member made comments directed to students with lower grade averages such as: “only five people will actually pass this course” and “let me teach these top six first and the rest of you can pay attention if you want, doesn’t really matter”

Evidence

The only evidence that the Committee received in relation to this allegation came from the written statement of Student 2 dated January 14, 2014 (see Exhibit 10). This evidence was hearsay as the student did not testify before the Committee. There is no evidence that School administration raised this issue with the Member, and none of the School administrators who testified gave any evidence about this allegation.

Conclusion

The College has provided insufficient evidence to prove, on a balance of probabilities, that the Member made the comments alleged at paragraph 4(c) of the Notice of Hearing. The Committee does not find that Student 2’s hearsay evidence in relation to this issue is sufficiently reliable to prove this allegation because there does not appear to have been any follow up from School administration regarding this allegation and there is no other corroborating evidence. School administration investigated a number of issues regarding the Member’s conduct, raised these issues with the Member during formal meetings, and imposed disciplinary action where appropriate. None of the evidence of the School administrators addresses the allegation set out at paragraph 4(c) of the Notice of Hearing, which suggests that there may not be merit to this allegation. Moreover, the three School administrators consistently testified that the Member was a devoted teacher, which is inconsistent with Student 2’s allegation that the Member made discouraging comments to students with lower grade averages.

Without having had the benefit of receiving Student 2’s evidence under oath during the hearing, and without being able to assess her credibility in relation to this allegation, the Committee does not accept her hearsay evidence regarding the Member’s alleged inappropriate comments made to students with lower grade averages.

Legal Conclusions

The Member engaged in professional misconduct

The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

However, the College did not prove that the Member verbally and psychologically or emotionally abused students, contrary to subsections 1(7) and 1(7.2) of Ontario Regulation 437/97.

1(5): The Member failed to maintain the standards of the profession

The Committee finds that the Member failed to maintain the standards of the profession. In making this determination, the Committee relied on the expert opinion of Principal Vandyke, who was qualified as participant expert in the area of classroom management. Principal Vandyke described The Ethical Standards for the Teaching Profession, which include care, trust, respect and integrity (see Exhibit 14), and he explained how the Member’s conduct failed to meet these ethical standards. The Committee accepts Principal Vandyke’s opinion that: the Member demonstrated a lack of care for students and how they were addressed, supported and treated on multiple occasions; he failed to establish a trusting relationship with students through his repeated, inappropriate actions; he did not treat students respectfully or resolve conflicts in a respectful manner; and, his actions lacked integrity because he did not always value and support students.

Moreover, the Committee accepts Principal Vandyke’s opinion that the Member acted contrary to: the Board’s Equity Foundation Policy (see Exhibit 15); the Board’s Human Rights Policy (see Exhibit 16); and, the Board’s Code of Conduct (see Exhibit 17). The Member used inappropriate language and demeaned students. Among other things, this behaviour was contrary to the Board’s Code of Conduct, which requires teachers to help students develop a sense of self-worth, to empower students to be positive leaders in the school community, and to demonstrate respect for all students (see Exhibit 17 at page 56).

The Committee further finds that the Member failed to maintain The Standards of Practice for the Teaching Profession (see Exhibit 14). Among other things, members are expected to promote and participate in the creation of safe and supportive learning communities. The Member did not meet this standard when he behaved disrespectfully and inappropriately in class on several occasions. For instance, the Member’s attempt to relate to a multicultural group of students by teaching [XXX] problems about drugs and gangs was demeaning. As Principal Vandyke explained, it was inappropriate for the Member to assume that students would relate to gang culture because of their lower socioeconomic status. The Committee finds that this subject matter served no educational purpose and demonstrated a lack of professional judgment by the Member. Similarly, the Member’s rude behaviours, which included humping a wall, have no place in the classroom and demonstrate the Member’s failure to maintain the standards of the profession.

Finally, it is a breach of professional standards to call a student an “idiot” and a “douche”, as the Member did. Members are expected to treat students equitably and with respect. It is unacceptable for members of the profession to belittle students.

1(7) and 1(7.2): The College did not prove that the Member abused a student or students verbally, psychologically or emotionally

While the Committee found that the Member’s conduct was inappropriate on several occasions, it did not find that the Member’s conduct amounted to “abuse” because the College provided insufficient guidance in this regard. The Committee specifically asked College Counsel for a legal definition of “abuse” or for some guidance from the case law with respect to what type of conduct has been found to constitute verbal, psychological or emotional abuse in past cases before the Discipline Committee. The College, however, provided no case law and no legal definition in order to guide the Committee. The Committee therefore determined that it had received insufficient guidance in order to label the Member’s conduct as “abusive”. Accordingly it did not find that the Member contravened subsections 1(7) or 1(7.2) of Ontario Regulation 437/97.

1(15): The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act

The Committee finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(b) of the Education Act provides that it is the duty of a teacher to, “encourage pupils in the pursuit of learning.” The Member failed to do so when he demeaned Student 2 by calling her an “idiot” and a “douche”. It is unacceptable for teachers to direct these types of discouraging remarks towards students.

Moreover, section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” This provision is commonly understood to mean that teachers must act as positive role models for students. By using inappropriate language on several occasions, and by modeling inappropriate behaviour such as humping a wall, the Member acted as a poor role model.

1(18): The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional

The Committee finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. It was disgraceful and dishonourable for the Member to hump a wall in class. It was unprofessional for the Member to demean a student by calling her an “idiot” and a “douche”, to slam a metre stick on desks, to use inappropriate language in class and to refer to inappropriate subject matters as part of his lessons.

Members of the profession are expected to maintain their composure and to treat students with respect, even when students may initiate the inappropriate behaviour. When Student 2 called the Member a “douche”, for instance, the Member could have used a variety of classroom management strategies to diffuse the situation, but he instead retaliated by calling the student a “douche” and an “idiot”. As the professional and the adult in the teacher-student relationship, the Member ought to have controlled his emotions and responded to the student in a professional manner.

While the Committee found that the Member also jumped on desks as alleged at paragraph 3(b) of the Notice of Hearing, the Member had provided the explanation to Principal Vandyke that he did this to teach his students a [XXX] concept. While the Committee finds that it would generally be unprofessional for members to jump on desks (because this models inappropriate behaviour and is an indication of poor classroom management), the College provided insufficient evidence to prove that the Member’s jumping on desks was unprofessional in the particular circumstances of this case. Principal Vandyke testified that it was part of an inappropriate pattern of behaviour, but he did not provide sufficient detail regarding this particular incident to prove that the Member’s behaviour was inappropriate. He also did not mention this conduct in his letter of reprimand to the Member, which suggests that it may not have been a very serious incident.

1(19): The Member engaged in conduct unbecoming a member

The Committee finds that the Member engaged in conduct unbecoming a member of the teaching profession through his series of inappropriate comments and behaviours. Using profanity in the classroom, demeaning students, and modeling rude and inappropriate behaviour undermines the reputation of the teaching profession and jeopardizes the trust that parents, students and the public place in teachers. It reflects poorly on the profession as a whole when members engage in the type of behaviour that was found to have occurred in this case.

PENALTY

The Committee rendered its oral decision relating to the findings of professional misconduct against the Member on September 21, 2018. The Committee then heard submissions on penalty from College Counsel. As the Member was not in attendance and not represented, no submissions were made on his behalf.

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel explained that the Committee has the discretion to order a penalty that it considers appropriate in the circumstances, but submitted that the College was seeking a penalty that includes the following elements:

1. a reprimand;

2. a suspension in the range of three to six months;

3. the imposition of terms, conditions or limitations that include the requirement that the Member successfully complete coursework regarding anger management and the maintenance of professional boundaries; and

4. costs in the range of $5,000-10,000.

According to College Counsel, the reprimand and coursework components of the proposed penalty should not be controversial. With respect to the appropriate duration of the suspension, however, College Counsel presented the Committee with five recent decisions of the Discipline Committee in which suspensions of up to six months had been ordered: Ontario College of Teachers v. Chéry, 2016 ONOCT 73 (“Chéry”); Ontario College of Teachers v. Lowrie, 2015 ONOCT 53 (“Lowrie”); Ontario College of Teachers v. Manga, 2017 ONOCT 48 (“Manga”); Ontario College of Teachers v. Law, 2016 ONOCT 32 (“Law”); and Ontario College of Teachers v. Williams, 2016 ONOCT 55 (“Williams”). College Counsel reviewed these decisions with the Committee and submitted that a suspension in the range of three to six months would be appropriate given the circumstances in the Member’s case.

College Counsel further submitted that the Committee ought to consider the following aggravating and mitigating factors when determining the appropriate penalty in this case. The aggravating factors include the following:

1. the Member’s inappropriate conduct was repeated;

2. there was a variety of unprofessional behaviour that included inappropriate comments and gestures;

3. School administration advised the Member to correct his behaviour on several occasions, but the Member’s behaviour did not improve; and

4. the Member was uncooperative and did not participate in the College’s discipline process.

The mitigating factors include the following:

1. the three School administrators who testified indicated that the Member had many good qualities as a teacher and that he was devoted to his students, despite his issues with inappropriate language and behaviour; and

2. the Committee did not find that the Member’s conduct constituted abuse, contrary to subsections 1(7) or 1(7.2) of Ontario Regulation 437/97, which suggests that a more lenient penalty may be appropriate.

With respect to the College’s request for costs against the Member in the range of $5,000-10,000, College Counsel submitted that a costs order was appropriate because the Member was uncooperative and did not attend his hearing. According to College Counsel, because the Member had admitted some of his inappropriate conduct to School administration, a full contested hearing could have been avoided if the Member had cooperated. College Counsel submitted that the Committee had the authority to order costs against the Member pursuant to paragraph 4 of subsection 30(5) of the Act and Rule 16.05(3) of the Rules. Moreover, College Counsel presented the Committee with Ontario College of Teachers v. Williamson, 2017 ONOCT 20 (“Williamson”), which was a recent decision of the Discipline Committee in which costs were ordered.

College Counsel submitted that, in the Member’s case, it was not seeking costs at the $10,000 daily, upper limit of Tariff A of the Rules because the Member’s misconduct was not as serious as that in Williamson.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is directed to appear before the Committee, within 120 days of the date of the Committee’s Decision, Reasons for Decision and Order, 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. The Registrar is directed 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 120 days of the date of the Committee’s Decision, Reasons for Decision and Order, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management, subject to the following conditions:

(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Committee’s Decision, Reasons for Decision and Order;

(ii) upon review of the Committee’s Decision, Reasons for Decision and Order, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the 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.

3. The Committee fixes costs to be paid by the Member to the College in the amount of $7,500, which must be paid within 120 days of the date of the Committee’s Decision, Reasons for Decision and Order.

REASONS FOR PENALTY

In arriving at its decision with respect to penalty, the Committee carefully considered the College’s evidence and submissions. The Committee was also mindful of the guiding principles that orders should address, including specific and general deterrence, remediation, transparency and public protection. The Committee further recognizes the principle that like cases should be treated alike. The Committee finds that the penalty in this case falls within a range of acceptable outcomes, based on the case law presented by College Counsel.

The Committee assessed the aggravating and mitigating factors in the Member’s case. The fact that all three School administrators described the Member as a devoted teacher who had trouble controlling what he said or his reactions was a significant mitigating factor in this case.

However, there were a number of aggravating factors in this case. First, the Member’s inappropriate conduct was repeated and he did not improve his behaviour after School administration intervened on several occasions. Second, the Member’s conduct was concerning: he belittled a student; he demonstrated an inability to control his temper; and he used inappropriate language and behaved unprofessionally in class. Third, the Member did not participate in the discipline process. The College made numerous attempts to contact the Member since December 17, 2017 when he became self-represented (see Exhibit 2). The afternoon before the start of his hearing, he emailed College Counsel to say that he was not attending. In this email, he admitted that some of the allegations against him were true (see Exhibit 2 at Tab O), but he nevertheless chose not to engage in the College’s processes by attending the hearing.

The Committee recognizes that the Member was not required to admit his misconduct and it accepts the advice of Independent Legal Counsel that the absence of an admission is not an aggravating factor. The Committee nevertheless finds that the Member’s complete lack of participation in the discipline process (regardless of whether or not he was willing to admit his professional misconduct) is an aggravating factor.

Reprimand

The Committee finds that the Member’s repeated unprofessional conduct warrants a reprimand by his peers. On a number of occasions during the 2011-2012 and 2013-2014 academic years, the Member made inappropriate or demeaning comments to students and behaved in an offensive or unprofessional manner. Among other things, he belittled a student by calling her an “idiot” and a “douche”, he humped a wall in class, he slammed a metre stick on desks, and he referred to inappropriate subject matters in class, including “sluts, whores, drugs, body parts and sexual matters.” This type of behaviour has no place in an educational setting. Members of the profession are expected to behave as positive role models for students and to provide them with a safe and supportive learning environment. The Member did the opposite. 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.

Suspension

Although the College sought a suspension in the range of three to six months, the Committee does not find that a suspension is warranted in this case. Having carefully reviewed the case law presented by College Counsel, the Committee determined that the Member’s case was not as serious as those that resulted in suspensions and was more similar to those in which no suspensions were ordered.

In Chéry, a six-month suspension was ordered but Mr. Chéry was found to have verbally, physically and psychologically or emotionally abused numerous students in seven different classes. The Member’s misconduct was not nearly as severe as Mr. Chéry’s misconduct and a similar suspension is therefore not appropriate.

In Lowrie, a six-month suspension was ordered but, in addition to making demeaning or inappropriate comments to students, Mr. Lowrie’s behaviour included insubordination and threats to his principal. The Member’s misconduct was not as serious as Mr. Lowrie’s inappropriate, insubordinate, and threatening behaviour and a similar suspension is therefore not appropriate.

In Manga, a four-month suspension was ordered but this matter was decided by way of agreement, in which the parties compromised to arrive at a mutually acceptable penalty. Moreover, Mr. Manga’s misconduct was considerably more serious than the Member’s misconduct in that he had made numerous disparaging and racist remarks to students over a prolonged period of time. Mr. Manga’s comments formed part of a far more concerning pattern of behaviour than the Member’s. Accordingly, a similar suspension is not appropriate in the Member’s case.

In Law and Williams, no suspensions were ordered. In both of these cases, the members had made insensitive comments to students, had used profanity in class, or had made inappropriate comments that were overly critical of students’ work or efforts. The severity of the misconduct in both of these cases was similar to that in the Member’s case. Accordingly, because like cases should be treated alike, the Committee finds that no suspension is warranted in the Member’s case.

Coursework

The Committee finds that it is appropriate to order that the Member successfully complete a course of instruction regarding classroom management. This element of the Committee’s penalty order is intended to assist with the rehabilitation of the Member. The coursework should provide the Member with strategies to better deal with his frustrations, to resolve conflicts in classroom situations, and to respond appropriately if students initiate conduct that might upset him. The coursework should also review the ethical standards of care, trust, respect and integrity with the Member and remind him of how these standards relate to controlling one’s emotions when interacting with students. The Member must understand that it is unacceptable to use inappropriate language in class or to direct disparaging remarks at students. Members of the profession must maintain their composure, even when dealing with challenging issues in the classroom. By learning effective classroom management strategies, the Committee believes that the Member will be able to interact more appropriately with students moving forward.

Based on the totality of the evidence in this case, the Committee does not find it necessary to order that the Member complete coursework regarding anger management or the maintenance of professional boundaries, as proposed by College Counsel. The evidence, including that of the participant experts qualified in the area of classroom management, pointed to the Member’s shortcomings in the area of classroom management and not to any significant anger issues or boundary issues.

Costs

The Committee finds that a costs order of $7,500 against the Member is appropriate in this case. The Committee has the discretion to make an order fixing costs to be paid by the Member to the College pursuant to paragraph 4 of subsection 30(5) of the Act. Furthermore, pursuant to Rule 16.05(3) of the Rules, the College is not required to prove the cost or expense of a hearing if the request is equal to or less than the daily fee of $10,000 to conduct a hearing, which is set out in Tariff A (appended to the Rules).

It is appropriate to order costs against the Member in this case because he was uncooperative with the College and because he refused to engage in the College’s discipline process in any way, despite the College’s numerous attempts to communicate with him (see Exhibit 2). The Member admitted some of his inappropriate conduct to School administrators and, in an email that he sent to College Counsel on the afternoon before the start of his hearing, he admitted that some of the allegations against him were true (see Exhibit 2 at Tab O). Had the Member been more cooperative with the College (even without admitting that he engaged in professional misconduct) it is possible that the parties could have agreed on certain facts, which would have led to a shorter hearing and conserved Committee resources.

Members of the profession are not required to admit their professional misconduct because the College bears the burden of proof. However, the Member was advised that the College would seek costs if it were required to proceed with a contested hearing (see Exhibit 2 at Tab N), which it was. Accordingly, the Committee finds that it is reasonable to order costs in this case. The College (and through their registration fees, members of the profession) should not incur the entire costs of contested hearings where the cooperation of a member facing disciplinary action could significantly shorten the hearing and reduce costs.

The Committee does not, however, accept the submission of College Counsel that the severity of a member’s misconduct is a relevant consideration with respect to costs orders. Rather, the Committee accepts the advice of Independent Legal Counsel that costs orders should be compensatory, not be punitive. They are meant to share the financial burden of a discipline proceeding between the parties. Accordingly, the nature or severity of a member’s misconduct is not relevant when considering whether to order costs. A member’s participation in the hearing process or their cooperation with the College, however, is a relevant consideration.

With respect to the quantum of the costs order in this case, the Committee finds that $7,500 is a reasonable amount for a number of reasons. First, this amount falls at the middle of the range proposed by the College. Although the Member was uncooperative, it is not clear that this matter could have been completely resolved by way of agreement had the Member been more cooperative. While he admitted some of the allegations to School administration and in his email to College Counsel dated September 19, 2018 (see Exhibit 2 at Tab O), he also indicated that he did not believe that his conduct amounted to professional misconduct. Therefore, the Committee finds that it is probable that some portions of this hearing would have still been contested, even if the parties had agreed on certain facts.

Second, the Committee notes that the College was not entirely successful in proving all of the allegations against the Member, which provided the Committee with a basis to reduce the quantum from the Tariff A rate of $10,000 per day.

Third, although this hearing took place over the course of two days, the Member was not solely responsible for the two-day duration of this hearing. Part of this time was used for the Committee’s deliberations regarding the finding stage of the hearing, and part of the time was used to address the College’s motion to hear the matters consecutively. The Committee’s costs order of $7,500, which is considerably lower than the $20,000 upper limit that could have been ordered according to Tariff A, takes into account these timing considerations.

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

Date: October 31, 2018

Bill Petrie

Chair, Discipline Panel

Diane Ballantyne, OCT

Member, Discipline Panel

Shanlee Linton, OCT

Member, Discipline Panel

Footnotes

1. 1The Committee made this decision with the information available to it at the time – that the College anticipated completing both matters within the two scheduled hearing dates. As the hearing proceeded, however, it became clear that both matters could not possibly be heard in the two scheduled hearing dates, and subsequent hearing dates were scheduled (December 12-13, 2018).
2. 2See also Ontario College of Teachers v. Douglas, 2017 ONOCT 18 and Ontario College of Teachers v. Crouse, 2016 ONOCT 99, which College Counsel provided to the Committee but did not review.