Ontario College of Teachers v. Lafleche, 2019 ONOCT 106

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

DECISION, REASONS FOR DECISION AND ORDER

Citation: Ontario College of Teachers v Lafleche 2019 ONOCT 106

Date: 2019-10-16

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 Kevin Jack Joseph Marshall Laflèche, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KEVIN JACK JOSEPH MARSHALL LAFLÈCHE (REGISTRATION #185417)

PANEL: Stéphane Vallée, OCT, Chair Josée Landriault, OCT Marlène Marwah

HEARD: September 17, 2019

Christine Lonsdale, for the Ontario College of Teachers Lise Leduc, for Kevin Jack Joseph Marshall Laflèche Renée A. Kopp, 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 was heard before a panel of the Discipline Committee (the “Panel”) on September 17, 2019 at the Ontario College of Teachers (the “College”).

A Notice of Hearing dated April 10, 2019 (Exhibit 1) was served on Kevin Jack Joseph Marshall Laflèche (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the charges. The hearing was subsequently set for September 17, 2019.

The Member did not attend the hearing but 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.

PUBLICATION BAN

The Committee handed down a mandatory publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), directing that 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.

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 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 supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(f) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(g) 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);

(h) 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);

(i) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

STATEMENT OF UNCONTESTED FACTS

College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Kevin Jack Joseph Marshall Laflèche, formerly known as Kevin Jack Marshall, is a member of the College. Attached as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Conseil scolaire de district catholique de l’Est ontarien (the “Board”) as a teacher. He taught [XXX], from [XXX], at École [XXX] (the “School”) in [XXX], Ontario.

3. On January 29, 2014, the School Principal received a call from the mother of a student in the Member’s Grade [XXX] class. The Member had left five of the girls in his class playing unsupervised in the gymnasium while he was in the classroom with the rest of the students. The Principal met with the Member to discuss student safety and remind him of his responsibilities. Attached as Exhibit “B” is a copy of the report on the meeting, dated February 4, 2014.

4. On or about June 16, 2015, a student in the Member’s Grade [XXX] class (“Student 1”) told the School Principal that an incident involving the Member had occurred the day before while the class was in the gymnasium. The Member had told the students to be quiet. When Student 1 started talking, the Member:

(a) yelled at Student 1;

(b) forcibly touched Student 1 on his arm;

(c) made Student 1 leave the gymnasium for almost the entire class.

5. The Member left Student 1 unsupervised in the hall for approximately 45 minutes.

6. On October 7, 2015, after an investigation by the Board, the Member received a written warning. Attached as Exhibit “C” is a copy of the letter from the Board to the Member, dated October 7, 2015.

7. On November 10, 2015, the Vice-Principal learned that a student in the Member’s Grade [XXX] class (“Student 2”) had been injured. Student 2 had hurt his back during the [XXX] class. The Member:

(a) left Student 2 on the floor and failed to check whether he needed help;

(b) asked other students to stay with Student 2 until the end of the class;

(c) went into the School with the rest of the class, leaving Student 2 and three other students outside unsupervised.

8. On November 24, 2015, after an investigation by the Board, the Member received a letter of discipline and a one-day suspension without pay. Attached as Exhibit “D” is a copy of the letter from the Board to the Member, dated November 24, 2015.

9. On March 31, 2016, after a [XXX] class, the Member asked some students in his Grade [XXX] class to clean the gymnasium. During the cleaning, a [XXX] fell down next to a student. The Member had failed to secure the [XXX] to ensure the safety of students and staff.

10. On April 1, 2016, three students in the Member’s Grade [XXX] class told the Vice-Principal that an incident had occurred in their [XXX] class. The Member had instructed the class to run 20 lengths of the gym, at the same speed. Four of the students were slower runners than the others. The Member:

(a) sent the four students out into the hall to run 20 lengths;

(b) left the rest of the students in his class unsupervised in the gym while he was in the hall;

(c) when another teacher intervened because the noise in the hall was disrupting her class, sent three of the students outside to run, in roughly 10° Celsius temperatures;

(d) left the three students outside unsupervised;

(e) failed to open the door to let the students in after they had finished running.

11. Attached as Exhibit “E” is a copy of the report concerning the incidents on March 31 and April 1, 2016.

12. On January 9, 2017, after an investigation by the Board, the Member received a letter of discipline and a three-day suspension without pay. Attached as Exhibit “F” is a copy of the letter from the Board to the Member, dated January 9, 2017.

13. On June 30, 2018, the Member retired from the Board. He does not intend to return to the classroom.

PLEA OF NO CONTEST

14. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).

15. The Member admits that the Uncontested Facts described above constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, concerning breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19).

16. The Member states that:

(a) he understands fully the nature of the allegations of professional misconduct 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 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 Professionally Speaking/ Pour parler profession, the official publication of the College;

(e) he understands that any agreement between him and College Counsel with respect to the penalty proposed in this document 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.

17. 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 Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E.23, for the purpose of this proceeding under the Act, 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.

18. In light of the aforementioned Uncontested Facts and plea of no contest, the College and the Member submit that the Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on September 17, 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(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 13 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(11), 1(14), 1(15), 1(18) and 1(19).

The Uncontested Facts demonstrate that, between January 2014 and April 2016, the Member left Grade [XXX] students unsupervised on several occasions; he was verbally and physically aggressive towards Student 1; he failed to check whether Student 2 needed help when he hurt his back; and he failed to make the gym equipment secure. Furthermore, during a [XXX] class, he sent three students outside unsupervised when it was cold, without even leaving the School door open so the students could come back in after they had finished running outside. His conduct demonstrates a lack of commitment to his students’ well-being. Teachers must always provide adequate care for the students under their professional supervision. When students are engaged in physical activity, the risk of injury is higher, which ought to call for more supervision, not less. The lack of concern for Student 2 (who had hurt his back) is disquieting, because it shows that the Member failed to make student safety a priority, and that is one of the core responsibilities of a teacher.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the Panel ought to impose the following penalty:

1. The College Registrar is directed to immediately revoke the Member’s certificate of qualification and registration.

SUBMISSIONS ON PENALTY BY THE PARTIES

College Counsel submitted that the penalty was appropriate because the Member’s conduct was prolonged in duration, previous disciplinary measures imposed by the Board were unsuccessful and the Member’s inadequate supervision exposed his students to the risk of injury. Counsel presented three instances of case law in support of her argument: Ontario College of Teachers v. Luke, 2016 ONOCT 33; Ontario College of Teachers v. Labbé, 2018 ONOCT 39; and Ontario College of Teachers v. O’Shea, 2017 ONOCT 8. She submitted that the proposed penalty fell within a reasonable range and would protect students and the public interest.

Counsel for the Member agreed with the submissions by College Counsel. She maintained that the penalty was within an acceptable range of possible outcomes for such conduct and that the Member’s decision to take his retirement in June 2018 was a significant factor in the agreement.

Opinion of Independent Legal Counsel

Independent Legal Counsel noted the limited discretionary power of a panel that receives a Joint Submission on Penalty from the parties and assured the Panel that it could rely on the agreement because it was the outcome of negotiations between opposing represented parties.

Panel’s Concerns

Notwithstanding the submissions by the parties, the Panel expressed concerns as to the severity of the proposed penalty, in view of the Uncontested Facts in the matter. The Member is clearly guilty of serious professional misconduct. His disregard for the safety and well-being of his students prompted three investigations by the Board that resulted in warnings and disciplinary measures. His behaviour did not improve. His repeated failure to supervise students deprived them of instruction and exposed them to an increased risk of injury.

Nevertheless, the Panel was concerned that the agreed penalty was too severe in the circumstances. The only prior case presented by the parties in which revocation was ordered is Luke. The penalties ordered in Labbé and O’Shea included six-month suspensions. Furthermore, the Member’s conduct as described in the Statement of Uncontested Facts was not as concerning as that of Mr. Luke, who swore in front of students and threw three different objects (the tip of a welding torch, some wood and a chair) at three students. He endangered a student by deliberately scratching a pair of safety glasses and then instructing him to wear them for welding. In addition, he blamed the students for his misconduct and said that he “would do it again” despite a Superintendent’s warning.

By comparison, the uncontested facts in the Member’s case do not demonstrate the elements of willfulness, malice or intractability. Other mitigating factors in this case include the Member’s plea of no contest, a savings of legal resources for the Panel, and the fact that the Member has not been the subject of College discipline proceedings in the past. These mitigating factors could mean that the penalty of a reprimand, suspension and a course would suffice to protect the public interest.

The parties had an opportunity to address the Panel’s concern that the penalty was too severe in the circumstances.

Additional Submissions by the Parties

College Counsel urged the Panel to order revocation because:

1. The parties had come to an agreement negotiated by legal counsel representing their clients’ interests. They could have various reasons for negotiating an agreement and accepting a compromise. Certainty in agreements is a crucial goal for the parties.

2. The penalty fell within an acceptable range of outcomes and was not so unreasonable that accepting it would bring the administration of the discipline process into disrepute.

3. The penalty would protect the public interest.

Member’s Counsel agreed with these submissions and added that the Member had retired in June 2018 and had no intention of returning to teaching. Consequently, he had no intention of taking a remedial course at his own expense.

PENALTY DECISION

In an oral decision rendered on September 17, 2019, the Panel accepted the Joint Submission on Penalty and made an order in accordance with its terms, as set out above.

REASONS FOR PENALTY DECISION

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: R. v. Anthony-Cook, [2016] 2 S.C.R. 204, 2016 SCC 43, para. 32.

On the basis of the above-mentioned submissions by the parties and the advice of Independent Legal Counsel, the Panel accepted the Joint Submission on Penalty. Although the Panel found that the proposed penalty was severe given the circumstances of the case, it does not believe that revocation of the Member’s certificate meets the high threshold required to depart from the Joint Submission on Penalty. The Panel acknowledges that certainty in agreements is a crucial goal, as the Supreme Court of Canada explained in Anthony-Cook. Nevertheless, the Panel does not believe that its decision will create a precedent, especially in a contested hearing. Although the Member’s conduct was serious, had there not been agreement by the parties, the Panel might have found a less severe penalty sufficient in the circumstances.

Nevertheless, the Panel is satisfied that the mutually agreed penalty meets the principle of serving and protecting the public interest.

Date: October 16, 2019

______________________________

Stéphane Vallée, OCT

Chair, Discipline Panel

______________________________

Josée Landriault, OCT

Member, Discipline Panel

______________________________

Marlène Marwah

Member, Discipline Panel