DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v De Mare 2018 ONOCT 72

Date: 2018-12-18

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

Salvatore De Mare, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

SALVATORE DE MARE (REGISTRATION #257680)

PANEL: Irene Dembek, OCT, Chair Alicia Nunn, OCT Jonathan Rose

HEARD: December 14, 2018

Stephanie Sugar of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

Sheilagh Turkington of Cavalluzzo LLP, for Salvatore De Mare

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 December 14, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated March 1, 2017 (Exhibit 1) was served on Salvatore De Mare (the “Member”), requesting his presence on March 29, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for December 14, 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

IT IS ALLEGED that Salvatore De Mare is guilty of professional misconduct as defined in the Ontario College of Teacher’s 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;²

(e) he failed to supervise adequately a student or students who are under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);³

(f) 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);⁴

(g) 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

(h) 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:

1. At all material times and currently, Salvatore De Mare has been and continues to be 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 “School Board”) as an occasional teacher.

3. On or about October 29, 2013, the Member was assigned to [XXX] School (the “School”) as an occasional teacher.

4. At all material times, Student 1 and Student 2 were [XXX]-year-old male students at the School and were students in the classroom the Member was assigned to teach.

5. In the course of the class, and in the course of the students using the class pencil sharpener, the sharpener was broken and turned over. Students crowded to see it and the Member directed them back to their seats. In the course of redirecting the students away from the pencil sharpener, the Member took Student 1 by the wrist and pushed/pulled the student towards his chair. The Member told Student 2 to “get away” from the class pencil sharpener, pulled the student’s shirt collar and told him to sit down.

6. On or about December 17, 2013, the Member received a letter of discipline from the principal of the School (Exhibit “B”) and he was blocked from further assignment at the School.

PLEA OF NO CONTEST

7. By this document,⁵ the Member acknowledges that he does not contest the truth of the facts and the exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”).

8. 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, concerning breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(18) and 1(19).

9. 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 Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest 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 this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

10. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline 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.

11. 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

Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c), (d), (e) and (f) of the Notice of Hearing, namely that the Member contravened subsections 1(7.2), 1(7.3), 1(11) and 1(15) of Ontario Regulation 437/97, be withdrawn. The Committee granted these requests.

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 December 14, 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), 1(18) and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 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), 1(18) and 1(19).

Paragraph 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); the Member also does not contest that the conduct is below the standards.

Paragraph 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).

Paragraph 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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).

Paragraph 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrates 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 impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course or courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and classroom management, subject to the following conditions:

(i) the Member will provide to the course practitioner(s) 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 Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course practitioner(s) 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(s) 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(s) outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner(s) which:

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

PENALTY DECISION

In an oral decision rendered on December 14, 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. Stodola, 2018 ONOCT 22 and Ontario College of Teachers v. Lolli, 2017 ONOCT 87.

Reprimand

The Committee finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The Committee is concerned with the way that the Member mistreated two [XXX]-year-old students in the class he was assigned to teach as an occasional teacher. While redirecting a group of students back to their seats, the Member took one of them by the wrist and pushed or pulled the student towards his chair. The Member pulled another student’s shirt collar and told him to sit down.

The Member’s unnecessary use of physical force against students was unacceptable. Members of the teaching profession hold a unique position of trust and authority. They are expected to act professionally at all times and, under no circumstances can they physically abuse students. If the Member needed to redirect these students to their seats, he ought to have told them to sit down without pushing or pulling them. The Member’s conduct towards two young students was unacceptable. There is no place for this type of behaviour in the classroom. 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.

Coursework

The Committee was initially concerned that the timing of the coursework in the proposed Joint Submission on Penalty did not require the Member to complete the course before returning to the classroom, and invited the parties to make submissions in that regard. The parties submitted that having the Member complete coursework prior to returning to the classroom would amount to a de facto suspension, in that it would take some time for him to locate a course, attend the course, and have the course provider report back to the College and that furthermore, most of those factors would be outside the control of the Member and thus would amount to a suspension of an arbitrary length. The parties submitted that, based on past cases that are similar to the Member’s case, the conduct described in the Statement of Uncontested Facts and Plea of No Contest (which is essentially one incident, albeit involving two students) would not warrant a suspension and to impose one would be disproportionate to the misconduct. Member’s Counsel also reminded the Committee that the misconduct occurred five years ago and that the Member has been employed since then. The Committee was satisfied with the parties’ submissions.

The Committee finds that the course or courses of instruction regarding appropriate boundaries and boundary violation issues and classroom management will assist in the rehabilitation of the Member. The coursework will be tailored to the Member’s misconduct in this case and will provide him with strategies to better deal with any future student behaviour that he may need to manage.

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

Date: December 18, 2018

Irene Dembek, OCT

Chair, Discipline Panel

Alicia Nunn, OCT

Member, Discipline Panel

Jonathan Rose

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2Allegation withdrawn.
3. 3Allegation withdrawn.
4. 4Allegation withdrawn.
5. 5For the purposes of paragraphs 7 and 9, this “document” refers to the Statement of Uncontested Facts and Plea of No Contest.