DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Barry Norman Hutton, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
BARRY NORMAN HUTTON (REGISTRATION #114097)
PANEL: Nicola Powadiuk, OCT, Chair Godwin Ifedi Bill Petrie
HEARD: November 29, 2018
Zirka Jakibchuk, for Ontario College of Teachers
Lauren Sheffield of Cavalluzzo LLP, for Barry Norman Hutton
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 29, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 28, 2018 (Exhibit 1) was served on Barry Norman Hutton (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for November 29, 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 Barry Norman Hutton is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student, or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student, or students, physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student, or students, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
College Counsel presented the Committee with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Barry Norman Hutton is a member of the Ontario College of Teachers. In June 1972, the Member obtained an Ontario Teacher’s Certificate. In May 1997, the Member obtained a Certificate of Qualification and Registration. Attached as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”) as an [XXX] teacher at various schools.
June 16, 2014 Incident
On June 16, 2014, the Member was supervising an outdoor game of [XXX] during a Grade [XXX] [XXX] class at [XXX] School (“School 1”) in [XXX], Ontario.
Student 1 was a Grade [XXX] female student and Student 2 was a Grade [XXX] male student in the class.
Before the class, one of the regular classroom teachers advised the Member that Student 2 had [XXX].
During the class, Student 2 asked the Member several times how to play the game and the Member told him to “watch the others play to figure it out.”
Student 2 moved to the fence, began picking grass, and threw it at the students on the bench. The Member responded by throwing grass at Student 2.
Student 2 then pushed Student 1, who hit her back on the bench and began to cry. The Member called attention to Student 1 in an inappropriate and non-supportive manner by telling Student 1 to stop crying and saying something along the lines of, “there is no crying in women’s [XXX].”
At the end of the period, Student 2 became upset because he did not get to play the game. As the students were heading back into School 1 the Member mocked Student 2, repeatedly calling him “a baby” or telling him that he was acting like “a baby.”
Student 2 ran at the Member, who grabbed Student 2’s leg, causing Student 2 to fall to the ground.
Student 2 then swore at the Member multiple times and ran at him again.
The Member told Student 2 to go to the office. Student 2 refused. The Member then said to Student 2, “just stay there, we’ll leave you.”
When Student 2 entered School 1, he started to kick the lockers. While Student 2 was doing this, the Member walked behind him, making comments like, “kick those lockers.”
The Member escalated Student 2’s behaviour by demeaning Student 2 and making sarcastic comments to him as indicated above.
The Children’s Aid Society of Hamilton (the “CAS”) investigated this matter. In its letter dated September 22, 2014, the CAS did not verify physical harm, but did verify the risk of physical and emotional harm. Attached as Appendix “B” is a copy of the CAS letter dated September 22, 2014.
On October 28, 2014, the Member received a written warning from the principal of School 1. Attached as Appendix “C” is a copy of the written warning dated October 28, 2014.
April 25, 2016 Incident
On or about April 25, 2016, the Member was [XXX] teaching a Grade [XXX] class at [XXX] School (“School 2”) in Hamilton, Ontario.
Student 3 and Student 4 were Grade [XXX] female students at School 2.
Student 3 and Student 4 asked for the Member’s permission to work in the library. The Member responded by saying something along the lines of, “hope you don’t cause any trouble even though you don’t look like terrorists.”
The Member admitted to making a comment along these lines, but said that it was made jokingly, without malicious intent. The Member apologized if the students took the comment seriously.
On June 20, 2016, the Member received a letter of discipline from the Principal of School 2 and was suspended for five days without pay. Attached as Appendix “D” is a copy of the letter of discipline dated June 20, 2016.
PLEA OF NO CONTEST
By this document,1 the Member does not contest the truth of the facts and Appendices referred to in paragraphs 1 to 21 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) [unprofessional] and 1(19).
By signing this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understands that he is pleading no contest to the allegations, and 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 the College with respect to the penalty does not bind the Discipline Committee; and
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practice Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act, 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
College Counsel requested that, with respect to the allegation that the Member contravened subsection 1(18) of Ontario Regulation 437/97, the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Committee granted this request.
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Committee rendered an oral decision on November 29, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) [unprofessional] and 1(19).
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 21 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(15), 1(18) [unprofessional] and 1(19).
Paragraphs 6-16 and 19-21 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 6, 8, 9, 12-16, 19-21 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).
Paragraphs 7, 10 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Paragraphs 8, 9 and 13-15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 6-16 and 19-21 of the Statement of Uncontested Facts and Plea of No Contest 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 6-16 and 19-21 of the Statement of Uncontested Facts and Plea of No Contest 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 6-16 and 19-21 of the Statement of Uncontested Facts and Plea of No Contest 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 that the fact of the reprimand be recorded on the Register of the Ontario College of Teachers (the “Register”); and
direct the Registrar of the Ontario College of Teachers (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 Committee’s Decision, Reasons for Decision and Order in this matter, the Member shall enroll 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 shall provide to a course provider approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Committee’s Decision, Reasons for Decision and Order;
(ii) upon review of the documents noted at paragraph (i) above, the course provider shall submit 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 provider shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider:
(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 29, 2018, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Parent, 2017 ONOCT 61; Ontario College of Teachers v. Sypus, 2018 ONOCT 9 and Ontario College of Teachers v. Gefter, 2017 ONOCT 47.
The Committee finds that the Member’s inappropriate, sarcastic and demeaning behaviour warrants a reprimand by his peers. The Member repeatedly mocked students and put them down, including by calling a student with [XXX] a baby. He also told two other students that he hoped they would not cause any trouble, even though they did not look like terrorists, which is an inappropriate reference when speaking to students. In addition, the Member grabbed a student’s leg, causing the student to fall to the ground.
Members of the profession are expected to act as role models for students and to provide safe and supportive learning environments. The Member failed to meet these expectations at two different schools, despite having received a written warning from school administration to correct his behaviour. The Member’s rude and obnoxious conduct undermines the public’s trust and confidence in the teaching profession and it is unacceptable. 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.
The Committee finds that the course of instruction regarding classroom management will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 29, 2018
Nicola Powadiuk, OCT
Chair, Discipline Panel
Godwin Ifedi
Member, Discipline Panel
Bill Petrie
Member, Discipline Panel