DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Avison 2018 ONOCT 71

Date: 2018-11-29

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

Robert Luke Avison, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ROBERT LUKE AVISON (REGISTRATION #191966)

PANEL: Rebecca Forte, OCT, Chair Alicia Nunn, OCT Jonathan Rose

HEARD: November 27, 2018

Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk Andrea Wobick of Ursel Phillips Fellows Hopkinson LLP, for Robert Luke Avison Julie Maciura of Steinecke Maciura LeBlanc, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 27, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated May 20, 2015 (Exhibit 1) was served on Robert Luke Avison (the “Member”), requesting his presence on May 27, 2015 to set a date for hearing and specifying the allegations. The hearing was subsequently set for November 27, 2018.

The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)¹ of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;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).

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Robert Luke Avison is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

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

The Student:

3. At all material times during the 2012-2013 school year, the Student was a [XXX]-year-old female student at the School and in the Member’s [XXX] Grade [XXX] [XXX] class. The Student had also been in the Member’s Grade [XXX] [XXX] class at the School [XXX] years earlier.

4. During the [XXX] of the 2012-2013 school year, the Student was often absent from School.

5. When the Member spoke with the Student about her absences, the Student confided in the Member that she suffered from [XXX], and acknowledged that she sometimes engaged in [XXX].

6. The Member responded by telling the Student that he understood the nature of [XXX], and disclosed that a close family member of his also suffered from [XXX]. The Student advised the Member that she felt relieved she could speak to the Member about her struggles, because she did not feel her parents understood or believed in [XXX].

7. The Student trusted the Member and began to confide in the Member. She saw the Member as a “father figure”.

Counselling:

8. The Member tried to assist the Student. He advised her to speak to her parents, a social worker or a doctor about how she felt, and offered to explain the nature of [XXX] to her parents.

9. The Member provided the Student with his cell phone number because she told him she feared she may [XXX] when home alone. He advised her that she could phone him if she wasn’t coming to class and needed to talk or went into [XXX], and he would “quarterback” getting help for her. The Member did not inform the administration that he had given the Student his cell phone number for this purpose.

10. The Member counselled the Student on a few occasions with respect to her personal struggles with [XXX]. He relied on his familial experience and history with [XXX]. He advised the Student’s co-op teacher and his curriculum leader that he was counselling the Student, but did not advise the administration or anyone else that he was counselling the Student regarding her [XXX].

11. On approximately three or four occasions during the semester, the Member spoke with the Student after school about how she was coping with her [XXX]. The Member would close the classroom door because the Student did not want other students to listen in or see her [XXX].

12. On other occasions, the Member and the Student spoke about her personal issues during class time. On these occasions, they went together into the [XXX], a small room at the back of the Member’s classroom, for privacy. The [XXX] was at the centre or hub of four separate classrooms, each with a door that opened into it. While the Member spoke to the Student in the [XXX], some of the doors remained open and teachers from other classrooms could enter at any time.

Physical Contact:

13. The Student on occasion became upset during the counselling sessions and cried as she spoke to the Member about her personal issues. On a couple of occasions when the Student cried, the Member hugged the Student when she appeared to be in distress.

[XXX]:

14. One morning in May 2013, the Student called the Member on his cell phone for the first time, to request an extension for an assignment. She explained that her medication had run out and her parents would not renew the prescription, and she was unable to [XXX]. The Member was worried because he understood there could be serious side effects when one suddenly stopped taking [XXX] medication. He told the Student he would go to the administration for help, and convinced the Student to come to class.

15. When the Student arrived in class, she was shaking uncontrollably. The Member googled the medication she had been taking, and believed that her shaking might be a symptom of withdrawal from the medication. He explained to the Student that stopping the medication abruptly could be “life-threatening”, and mentioned the words, “stroke, heart attack, aneurisms”, because he did not believe she appreciated the severity of her situation.

16. The Member suggested to the Student that she go to the [XXX] nearby for a renewal of her prescription. When she did not give him a clear response, he offered to accompany her to ensure that she went. The Student confirmed that she wanted the Member to accompany her, and hoped the Member would explain the situation to the [XXX] for her.

17. The Member and the Student left the School immediately. The Student was physically unsteady, so the Member assisted her as they walked to the [XXX] near the School. In the [XXX] at the [XXX], the Member held the Student’s hand and told her not to worry. The Member accompanied the Student into the [XXX] room. The Student advised the [XXX] that the Member was her teacher and consented to his presence during the appointment, and the Member advised the [XXX] of the Student’s situation.

18. At the conclusion of the appointment, the Member and the Student walked back to the School, arriving near the end of the day. The [XXX] had advised the Student to have her mother accompany her to the [XXX] and pay for a prescription renewal, and the Member reiterated the [XXX] advice.

19. The Member did not notify anyone about the Student’s telephone call to him earlier that day. The Member also did not tell anyone that he left School with the Student or that he accompanied her to the [XXX].

Final Contact:

20. On June 17, 2013, the Student called the Member on his cell phone to ask when she could hand in some school work he had given her to complete at home. On that occasion, the Member told her that he could not speak with her and that she should speak with another teacher about the assignment. The Student was confused, because that [sic] the Member had given her his cell number.

Board Investigation:

21. As per the Member’s suggestion, the Student spoke to her [XXX] teacher about having [XXX]. Her [XXX] teacher compelled the Student to speak with the Board’s social worker. In early June 2013, administration initiated an investigation after the Student disclosed to the social worker that the Member had accompanied her to the [XXX]. The Member was sent home with pay on June 13, 2013, pending completion of the Board’s investigation.

22. By letter dated May 15, 2014, the Board advised the Member that his employment had been terminated, effective that same date. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated May 15, 2014.

23. Following a grievance, the Member’s employment with the Board was reinstated. The Member remained on an unpaid leave from the Board from May 16, 2014 to October 31, 2015, and received a ten day suspension without pay from November 1 to 15, 2015.

24. The Member and the Student never spent any time alone together outside of school except for their attendance at the [XXX]. The Member never telephoned the Student, never told the Student not to tell anyone about their discussions or interactions, never exchanged electronic messages with the Student, and never turned out the lights when they were together.

25. The Member acknowledges that some of his actions were misguided. He acknowledges that he failed to maintain the standards of the profession by not consulting with Board qualified experts or the administration with respect to the Student’s [XXX], and when he met with the Student privately, counselled her, comforted her, and took her to a [XXX]. However, he would say that he intended them as part of a genuine attempt to assist the Student, who appeared to be [XXX], and appeared to have little to no support from her family regarding her [XXX].

GUILTY PLEA

26. By this document,³ the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 25 above (the “Admitted Facts”).

27. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19).

28. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

29. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted this request.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on November 27, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1-25 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19).

Paragraphs 9-13, 15-17, 19 and 25 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 15 and 20 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).

Paragraphs 9-13, 15-17, 19 and 25 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 9-13, 15-17, 19 and 25 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 9-13, 15-17, 19 and 25 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three months from September 15, 2014, to December 15, 2014, and the fact of the suspension is to be recorded on the Register;

3. directs the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or returning to a teaching position or any position requiring a Certificate of Qualification and Registration (collectively referred to as a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries with students, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

PENALTY DECISION

In an oral decision rendered on November 27, 2018 the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by the parties: Ontario College of Teachers v. Ste-Croix, 2015 ONOCT 75, Ontario College of Teachers v. Lepage, 2017 ONOCT 29, and Ontario College of Teachers v. Grima, 2018 ONOCT 16.

The Committee finds that the Member’s breach of appropriate professional boundaries warrants a reprimand by his peers. The Member failed to maintain appropriate boundaries with the Student when he shared personal details with her such as his phone number and his familiarity with [XXX]; when he hugged the Student; when he told the Student about the serious side effects of stopping [XXX] medication abruptly; and, when he left School with the Student and accompanied her to the nearby [XXX]. The Member demonstrated poor judgment by not consulting with Board qualified experts or School administration with respect to the Student’s [XXX]. While the Committee recognizes that the Member may have genuinely intended to help the Student, he was not properly qualified to do so and should therefore have avoided becoming overly involved in the Student’s personal affairs. 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 three-month retroactive suspension is appropriate given the circumstances of the Member’s case. In January 2013, the Member’s employment was terminated. The Member served a lengthy unpaid leave between May 16, 2014 and October 13, 2015. The Member’s employment was reinstated with the Board in May 2014, and the Board imposed a 10-day suspension from November 1, 2015 to November 15, 2015. The Member has not been in the classroom since 2013. To order a three-month suspension now would be excessive. Accordingly, the Committee accepts the parties’ joint submission that the Member’s suspension should correspond with a portion of his previous unpaid leave imposed by the Board (namely, the period from September 15, 2014 to December 15, 2014). The duration of the suspension is proportionate to the Member’s misconduct and falls within the range of acceptable outcomes, based on similar past cases before the College’s Discipline Committee. The fact of the suspension will be recorded on the register and this will serve as a general deterrent to other members of the teaching profession by informing them that there are serious consequences for failing to maintain appropriate professional boundaries with students.

The Committee finds that the course of instruction regarding professional boundaries with students 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

Rebecca Forte, OCT

Chair, Discipline Panel

Alicia Nunn, OCT

Member, Discipline Panel

Jonathan Rose

Member, Discipline Panel

Footnotes

1. 1Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
2. 2Allegation withdrawn.
3. 3For the purposes of paragraphs 26 and 28, this “document” refers to the Agreed Statement of Facts and Guilty Plea.