DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
Citation: Ontario College of Teachers v Gulamhusein 2019 ONOCT 101
Date: 2019-11-19
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
Qusai Ashik Gulamhusein, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
QUSAI ASHIK GULAMHUSEIN (REGISTRATION #628671)
PANEL: Nicola Powadiuk, OCT, Chair Benoît Dussault, OCT Marlène Marwah
HEARD: November 15, 2019
Eli Mogil and Noam Uri, for the Ontario College of Teachers Sheilagh Turkington, for Qusai Ashik Gulamhusein Rebecca Durcan, 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.
1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 15, 2019 at the Ontario College of Teachers (the “College”).
2Qusai Ashik Gulamhusein (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION ban
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. 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.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated January 24, 2018 (Exhibit 1) are as follows:
IT IS ALLEGED that Qusai Ashik Gulamhusein is guilty of professional misconduct as defined in 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);1
(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);2 and
(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. AGREED STATEMENT OF FACTS
5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
At all material times, Qusai Ashik Gulamhusein was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an occasional teacher.
[XXX]February 2, 2015
On or about the morning of February 2, 2015, the Member was assigned to teach a [XXX] class at [XXX] School ([XXX].”) in Scarborough, Ontario.
On February 2, 2015, the Member inappropriately used physical contact with several students when he massaged and/or patted students’ shoulders, and tried to hug and hold students. One student was uncomfortable as a result of the physical contact and moved away from the Member.
The Member advised an Early Childhood Educator that he had a snow shoveling business, and that he was on Kijiji. During instructional time the Member was observed talking on his personal cell phone and engaging in communications concerning his snow shoveling business. The Member acknowledges that he should not have used his cell phone during instructional time.
On or about February 2, 2015, the Board began an investigation as a result of the Member’s conduct at [XXX]. Attached hereto and marked as Exhibit “B” is a letter from the Principal of [XXX] to the Member dated April 8, 2015 and signed by the Member on April 13, 2015.
[XXX], May 14, 2015
On or about May 14, 2015, the Member was assigned to teach a Grade [XXX] class at [XXX] School ([XXX].”) in Scarborough, Ontario. At all material times, Student 1 and Student 2 were Grade [XXX] female students at [XXX] in the Member’s class.
During the class several students were playing with metre sticks. In response the Member yelled at the students words to the effect of, “put the sticks down!”
Later that morning during the snack program, Student 1 and Student 2, distributed apples and cheese strings to the class. There were a lot of leftovers because a number of students were away that day. The Member yelled at Student 1 and Student 2, “Give me the snacks”, and took the leftover snacks. No student was deprived of a snack.
After recess, the Member sent a number of students to the staffroom to get snacks that teachers had brought in. The students returned with some cookies. The Member then instructed the students to return to the staffroom for another plate. The students arrived at the staffroom again but were told by a teacher there to immediately return to class.
The Member yelled and swore at the students. The Member acknowledges that he used inappropriate tone and language with students at times.
Later that day the Member made inappropriate physical contact with Student 1 and Student 2. The Member hit Student 1 with a metre stick or a smart board stick at least two times. The Member also tapped Student 2 with a metre stick or a smart board stick at least one time.
On or about June 1, 2015, the Member was charged with 2 counts of assault arising from the incident at paragraph 11 [sic]. These charges were subsequently withdrawn in exchange for a Peace Bond.
The Children’s Aid Society (“CAS”) conducted an investigation into the Member’s conduct in or around May and June 2015. The allegation that the Member placed the two students at risk of physical harm was verified. Attached hereto and marked as Exhibit “C” is a copy of the letter from CAS to the Board dated July 17, 2015.
The Board conducted an investigation into the Member’s conduct. As a result of the Board’s investigation, the Member’s employment was terminated by the Board on or about October 18, 2016. Attached hereto and marked as Exhibit “D” is a letter from the Board to the Member dated October 18, 2016.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
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), 1(7.1), 1(15), 1(18) [unprofessional] and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty to the allegations, he is waving 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 having had the opportunity to obtain the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
D. DECISION
6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. The Panel granted these requests.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on November 15, 2019 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(15), 1(18) [unprofessional only] and 1(19).
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 15 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member inappropriately made physical contact with several students by massaging or touching their shoulders, and attempting to hug or hold students. He used his cell phone during instructional time to conduct personal business. The Member used inappropriate language and tone with students, including yelling. He also hit Students 1 and 2, at least twice in the case of Student 1, with a metre or smart board stick.
9The Member’s conduct set out above is a clear breach of the professional and ethical standards of the profession, specifically those of care and respect, which, among other things, provide that members are expected to demonstrate their commitment to “students’ well-being”. By swearing, yelling and using inappropriate language, the Member abused students verbally. The Member physically abused students when he hit them with a metre or smart board stick and when he massaged a student. He contravened section 264(1) of the Education Act by failing to act as an appropriate role model. It is unacceptable for teachers to use inappropriate tone and language with their students, and to model that type of inappropriate behaviour for their students. The Member’s conduct was unprofessional and unbecoming of a member.
F. PENALTY DECISION
10The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 15, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to 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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;
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 Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course(s) of instruction pre-approved by the Registrar regarding anger management, classroom management and boundaries, subject to the following conditions:
(i) the Member will provide to a course provider 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 and Reasons 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(s) 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.
G. REASONS FOR PENALTY DECISION
11The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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 Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Campbell, 2018 ONOCT 28, Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28, and Ontario College of Teachers v. Gray, 2017 ONOCT 104.
12The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the seriousness and nature of the Member’s conduct, especially in light of the physical and verbal abuse directed at students. The Member’s misconduct was so serious that it led to his employment being terminated by the Board. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
13The Panel finds that the Member’s wide range of inappropriate conduct warrants a reprimand by his peers. Members are in a position of trust and are expected to serve as role models for students, which the Member failed to do by engaging in inappropriate touching of students, by yelling and swearing, and by hitting Students 1 and 2 with a metre or smart board stick. Further, his conducting personal business during instructional time negatively impacted the public confidence in members of the profession. The reprimand will allow the Panel 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.
14The Panel finds that the course(s) of instruction regarding anger management, classroom management and boundaries will assist in the rehabilitation of the Member. The Panel is concerned with the Member’s failure to respect boundaries and the lack of restraint he has demonstrated in the past. 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.
15Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the scope of the misconduct represented in those cases confirms that a suspension is justified. The Member’s misconduct was serious and formed a concerning pattern of behaviour. Members of the profession are expected to create a safe and supportive learning environment for all students. The Member did the opposite. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.
16The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 19, 2019
Nicola Powadiuk, OCT Chair, Discipline Panel
Benoît Dussault, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel