DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

DECISION, REASONS FOR DECISION AND ORDER

Citation: Ontario College of Teachers v Orme 2019 ONOCT 107

Date: 2019-10-29

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

John Thomas Orme, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOHN THOMAS ORME (REGISTRATION #440553)

PANEL: Nicola Powadiuk, OCT, Chair Benoît Dussault, OCT Richard Filion

HEARD: September 18, 2019

Jason Bennett, for the Ontario College of Teachers No one appearing for John Thomas Orme Erica Richler, 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 September 18, 2019 at the Ontario College of Teachers (the “College”).

2A Notice of Hearing dated August 31, 2016 (Exhibit 1) was served on John Thomas Orme (the “Member”) requesting his presence on September 20, 2016 to set a hearing date, and specifying the allegations. The hearing was subsequently set for September 18, 2019.

3The Member did not attend the hearing and did not have legal representation.

4Counsel for the College submitted an Affidavit of Tatiana Tkatch(Exhibit 2) sworn on September 17, 2019, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought by the College. In this affidavit, Ms. Tkatch, a law clerk with the College, outlined her communications with the Member and provided proof of service of all required documents. In particular, the Affidavit of Carly Thomson sworn September 8, 2016 (Exhibit “A” to Ms. Tkatch’s affidavit) attested to service of the August 31, 2016 Notice of Hearing on the Member’s legal counsel at that time. The July 18, 2019 email from Jason Bennett to the Member (at Exhibit “E” to Ms. Tkatch’s affidavit) provided a hyperlink to the August 31, 2016 Notice of Hearing. In the email, Mr. Bennett gave notice of the hearing date, time and place, the range of penalties that could be sought in the event of a finding of professional misconduct and the possibility of a costs award. The Member acknowledged receipt of Mr. Bennett’s email by responding to it on July 18, 2019 with “I am currently out of country – don’t waste paper – I no longer live at that address” (also in Exhibit “E” to Ms. Tkatch’s affidavit). Mr. Bennett responded, on July 19, 2019, “If it’s OK with you, we’ll only communicate via email from now on” and subsequently sent the Member a copy of the Affidavit of Masuma Khangura, with all exhibits, to the same email address on August 23 and 27, 2019 (at Exhibit “E” to Ms. Tkatch’s affidavit). In the August 23, 2019 email, Mr. Bennett advised the Member of his right to make submissions at the hearing and his right to cross-examine Ms. Khangura on her affidavit. College Counsel advised the Panel that none of his emails to the Member were returned as undeliverable.

5Based on the evidence in Ms. Tkatch’s affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought by the College. College Counsel advised the Panel that the Member had not communicated any intention to attend the hearing. The Panel delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Panel therefore heard this matter in the absence of the Member.

6Before leading any evidence, College Counsel informed the Panel that the Member had received a Notice of Hearing dated December 11, 2018 involving similar allegations, which was also set down for hearing on September 18, 2019. The Member did not consent to combine the proceedings or have them heard at the same time. College Counsel asked the Panel to hear the two matters one immediately after the other, pursuant to section 9.1(1)(c) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), if time permitted. The Panel agreed to this request. However, once the Panel gave its oral decision on finding and penalty in relation to the August 31, 2016 Notice of Hearing, there was insufficient time to proceed with the December 11, 2018 Notice of Hearing. The Panel did not hear or consider any evidence in relation to the December 11, 2018 Notice of Hearing and is not seized of that matter. Accordingly, this Decision, Reasons for Decision and Order relates only to the August 31, 2016 Notice of Hearing, and another hearing will be convened in relation to the December 11, 2018 Notice of Hearing. For additional clarity, all references to the Notice of Hearing below refer only to the August 31, 2016 Notice of Hearing.

A. PUBLICATION ban

7The Panel ordered a publication ban pursuant to section 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. OVERVIEW

8It is alleged that, between 2010 and 2012, the Member made inappropriate comments to students, both orally and in writing, assigned inappropriate journal topics and inadequately supervised students. He was the subject of disciplinary action by his School Board on at least two occasions in relation to this conduct.

9The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct. The Member contravened subsections 1(7), 1(7.2), 1(11), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

C. THE ALLEGATIONS

10The allegations against the Member in the Notice of Hearing (Exhibit 1) are as follows:

IT IS ALLEGED that John Thomas Orme is guilty of professional misconduct as defined in subsection 30(2) 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);¹

(b) he abused a student, or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) 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);

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. John Thomas Orme is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”) as an elementary teacher at [XXX] School (the “School”) in Hamilton, Ontario.

3. In November 2011, the Member used the title “Zoo Keeper” as his auto signature on his Board email, despite being directed to remove it.

4. During the 2011-2012 school year, the Member made inappropriate verbal comments to students or about students, which included, but was not limited to, the following:

(a) telling a co-op student that one of his Grade [XXX] female students may be sexually active and suggested she teach the female students “sex ed”;

(b) during a restorative justice circle, stated “I killed a lamb”; and

(c) suggested to a female student “Why don’t you just call her on it, tell her to deal with it, it’s disgusting”, in regard to a classmate who had chronic head lice.

5. During the 2011-2012 school year, the Member made inappropriate written comments on the board and in students’ journal entries, which included, but was not limited to, the following:

(a) writing on the board, “Mr. Orme admitted to owning the gun that killed his wife”;

(b) commenting in a student’s journal, “I’ll make sure I’m off the road” after a student advised of the long term goal of obtaining a drivers licence;

(c) calling a male student, “selfish and immature”; and

(d) calling a male student a “fat boy.”

6. During the 2010-2011 school year, the Member assigned journal topics that were inappropriate for Grade [XXX] students, which included, but was not limited to, the following:

(a) “If you had the chance to not be caught and steal something would you do it?”;

(b) “If you could make anyone your slave who would it be and what would he or she do?”;

(c) “If you had to pick a teacher to burn who would it be?”; and

(d) “What do you hate and like about old people?”

7. The Member did not adequately supervise students, which included, but was not limited to, the following occasions:

(a) During the 2009-2010 school year, dismissing a male student from class early for completing his daily goal and for good behaviour; and

(b) On or about January 19, 2012, allowing six of his students to run and scream in the hallway.

8. The Member received suspensions from the Board, which included:

(a) On or about August 31, 2011, the member was suspended for four days without pay for having assigned journal topics that were inappropriate for Grade [XXX] students, providing inappropriate written feedback, and for saying publically in a classroom setting that a particular student was gay and that the student liked to look at little boys; and

(b) On May 5, 2015, the Member received a five day suspension without pay for failing to create a safe and supportive environment for the students within his class, and for being demeaning and belittling towards his students.

D. Withdrawal of allegation

11Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97 (by failing to maintain the standards of the profession), be withdrawn. The Panel granted the request.

E. THE MEMBER’S PLEA

12As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

F. THE EVIDENCE

13The College relied solely on the Affidavit of Masuma Khangura sworn August 22, 2019 (Exhibit 4) in order to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of Ms. Khangura’s evidence.

(1) Affidavit of Masuma Khangura

14Ms. Khangura is the former Manager of Labour Relations at the Hamilton-Wentworth District School Board. The Member was employed by the Board to teach Grade [XXX] students in the [XXX] at [XXX] School. The [XXX] is for students who have been suspended or expelled from their home school.

15Ms. Khangura reviewed the Member’s disciplinary history with the Board and attached as exhibits to her affidavit copies of disciplinary letters to the Member along with investigation notes and notes of meetings with the Member.

16In 2010, the Board investigated a concern arising from the Member’s early dismissal of a student without the principal’s authorization. The Board’s findings are summarized in the September 20, 2010 letter from Pamela B. Reinholdt, Superintendent of Education - Student Achievement, to the Member (Exhibit “B” to Ms. Khangura’s affidavit). The Member was directed to take a classroom management/planning and program course by June 2011.

17In 2011, the Board investigated a number of concerns relating to the assignment of inappropriate journal topics and inappropriate written feedback to students. The Board’s findings are summarized in the August 31, 2011 letter from Mag Gardner, Superintendent of Student Achievement, to the Member (Exhibit “E” to Ms. Khangura’s affidavit). Ms. Gardner noted that the Member had not yet taken the remedial course arising from the first investigation, despite further correspondence from the Board reminding him of this obligation and extending the deadline to July 8, 2011. The Board suspended the Member for four days without pay.

18Ms. Khangura stated that “On or about February 11, 2012, the Member took a leave of absence from his employment with the Board and was not cleared to return to work, on a part-time basis, until February 2015.”

19In 2015, the Board investigated a number of concerns relating to the Member’s Board email signature and inappropriate verbal and written comments. Ms. Khangura noted that these concerns arose from the Member’s earlier conduct but were not investigated until later owing to the Member’s leave of absence from February 2012 to February 2015. The Board’s findings are summarized in the May 5, 2015 letter from Patrick Rocco, Superintendent of Human Resources, to the Member (Exhibit “F” to Ms. Khangura’s affidavit). The Board suspended the Member for five days without pay.

20On May 12, 2015, the Member completed a course on professional boundaries and on July 8, 2015, the Member completed a course in classroom management (Exhibit “I” to Ms. Khangura’s affidavit).

G. SUBMISSIONS OF COLLEGE COUNSEL

21College Counsel acknowledged that the Affidavit of Masuma Khangura contains hearsay evidence and submitted that such evidence was permitted and reliable. Section 15(1)(b) of the SPPA permits a tribunal to admit as evidence “any document or other thing” whether or not admissible in evidence in a court. The affidavit was sworn before a Commissioner of Oaths. The exhibits to the affidavit are Board letters and notes that speak for themselves about the Board’s investigations and findings. The meeting notes contain the Member’s admissions and explanations. All such documents were shared with the Member through the Board’s disciplinary process and the College’s disclosure process. According to College Counsel, the use of affidavit evidence, rather than oral evidence, is appropriate in a case such as this where the Member shows no intention to participate in the disciplinary process, but was given an opportunity to cross-examine the affiant, and the alleged misconduct occurred such a long time ago that memories will have faded and witnesses will have moved on.

22College Counsel indicated that, for the purpose of the August 31, 2016 Notice of Hearing, he relies on paragraphs 4 to 34 and 42 to 45 of Ms. Khangura’s affidavit. He reviewed these paragraphs, including the associated exhibits, with the Panel. He submitted that the Member’s assignment of inappropriate journal topics and his inappropriate comments to students, as described in Ms. Khangura’s affidavit and its exhibits, amounted to verbal, psychological and emotional abuse. He also pointed out that at the time of the third Board investigation, in May 2015, the Member had still not done the coursework he was required to complete by June 2011 following the first Board investigation.

23College Counsel submitted that the evidence in Ms. Khangura’s affidavit proves, on a balance of probabilities, each of the allegations on which the College is proceeding. He therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing, with the exception of the withdrawn allegation.

H. DECISION ON FINDING

(1) Onus and standard of proof

24The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

(2) Decision

25Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on September 18, 2019, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(11), 1(15), 1(18) and 1(19).

I. REASONS FOR DECISION

26The Panel accepts the Affidavit of Masuma Khangura as admissible and reliable evidence for the reasons submitted by College Counsel. Ms. Khangura’s evidence is objective and supported by the exhibits to the affidavit. The letters and meeting notes attached to Ms. Khangura’s affidavit were prepared at the time of the Board’s investigations and may reasonably be viewed as reliable documentary evidence. Prior to the hearing, the Member was provided with a copy of the affidavit, including all exhibits, and advised of his right to cross-examine Ms. Khangura. He chose not to attend the hearing, either in person or through a representative, to challenge her evidence.

27The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing. All references to lettered exhibits such as Exhibit “B” refer to exhibits to Ms. Khangura’s affidavit.

(1) Factual Findings

(i) The Member dismissed a student from class early without the principal’s authorization

28The Panel finds that, during the 2009-2010 school year, the Member dismissed a [XXX]student at 11:00 a.m., three hours ahead of his regular 2:00 p.m. dismissal time, without the principal’s authorization, as alleged in paragraph 7(a) of the Notice of Hearing. This evidence is found in paragraph 5 of Ms. Khangura’s affidavit and the Board’s September 20, 2010 letter to the Member (Exhibit ”B”).

(ii) The Member assigned inappropriate journal topics to students

29The Panel finds that, during the 2010-2011 school year, the Member assigned inappropriate journal topics to his Grade [XXX] students, including:

1. “If you had the chance to not be caught and steal something would you do it?”;

2. If you could make anyone your slave who would it be and what would he or she do?”;

3. “If you had to pick a teacher to burn who would it be?”; and

4. “What do you hate and like about old people?”.

30This evidence is found in paragraphs 14 and 15 of Ms. Khangura’s affidavit and the Board’s August 31, 2011 letter to the Member (Exhibit “E”). It proves the allegations at paragraph 6 of the Notice of Hearing. The topics are clearly unsuitable for students with their undertones of criminality (stealing), violence (enslavement, burning) and intolerance (enslavement, hatred for a group of people). Such topics are particularly inappropriate for students facing expulsion who may be struggling with strong feelings and impulse control. Ms. Khangura noted at paragraph 15 of her affidavit that the Member explained to the Board that he allowed students to choose their own journal topics and this evidence is supported in the accompanying investigation notes (Exhibit “E1”). Even if this is true, it demonstrates that the Member allowed his students to choose highly insensitive topics, especially given their at risk status.

(iii) The Member made inappropriate comments to students

31The Panel finds that, during the 2011-2012 school year, the Member made the following inappropriate comments to, about or in the presence of students:

1. calling himself “Zoo Keeper” on his Board email;

2. saying “I killed a lamb” during a restorative justice circle;

3. writing on the board “Mr. Orme admitted to owning the gun that killed his wife.”; and

4. writing the following comments in a student’s journal:

(a) “I’ll make sure I’m off the road” in response to a student writing about his intention to get his driver’s license;

(b) “selfish and immature” in response to a student writing about playing video games; and

(c) “fat boy” in response to a student writing about what he ate during the weekend.

32This evidence is found in paragraphs 25, 26, 27, 28, 30, 31 and 32 of Ms. Khangura’s affidavit, the Board’s May 5, 2015 letter to the Member (Exhibit “F”) and notes of an April 21, 2015 meeting with the Member (Exhibit “F1”). The notes of the April 21, 2015 meeting indicate that the Member verbally acknowledged making the comments described above. He provided the following additional information when asked to explain his behaviour. He said he would delete the words “Zoo Keeper” in his auto signature if it was not a personal email. He said he wrote the words “I killed a lamb” on a piece of paper during an activity but they were not read aloud and referred to his family’s Christmas tradition. However, the Board’s May 5, 2015 letter (Exhibit “F”) makes it clear that this explanation was disputed by witnesses who came forward following the restorative justice circle. The Member recognized that the other comments were unprofessional and demonstrated poor judgment.

33The evidence proves the allegations at paragraphs 3, 4(b), and 5 of the Notice of Hearing. The comments are clearly unsuitable and show poor judgment. The title “Zoo Keeper” implies that the Member’s students are animals and is disrespectful and insensitive. The meeting notes (Exhibit “F1”) indicate that the Member was asked to remove this auto signature in mid December 2011 but it was still there in January. He said he thought he had removed it but must have forgotten to save the changes. The comments during the restorative justice circle and on the board also show poor judgment as they appear to normalize violence. The comments in the students’ journals are mean spirited instead of encouraging and instructive.

(iv) Allegations not particularized in the Notice of Hearing

34Ms. Khangura’s affidavit contains reference to additional examples of inappropriate comments and journal topics that were not particularized in the Notice of Hearing. Paragraphs 5 and 6 of the Notice of Hearing state that the conduct “included, but was not limited to, the following” examples, thereby indicating that other examples could be forthcoming at the hearing. The Member was provided with a complete copy of Ms. Khangura’s affidavit and exhibits in advance of the hearing. Furthermore, the investigation notes show he attended meetings at which additional examples were discussed, during which he acknowledged his poor judgment and lack of professionalism. The Panel finds the Member had adequate notice and it is permissible for the Panel to consider the evidence of these additional examples.

35The Panel accepts the additional examples of inappropriate comments and journal topics described in Ms. Khangura’s affidavit at paragraphs 14, 16, 18, 19 and 29, the Board’s August 31, 2011 letter (Exhibit “E”) and the Board’s May 5, 2015 letter (Exhibit “F”), and highlights the following:

1. “Who do you think “peed” in the garbage can?” (journal topic);

2. “You suck everyone likes Dumbo/Nemo/Bambi…maybe you’re the type of person who would shoot Bambi and mount it on your wall” (in response to journal entry about favourite Disney character);

3. “Awwww! Poor [name of student]” (in response to journal entry complaining about how badly other students were treating student);

4. “You can buy flame throwers on ebay – cool” (in response to journal entry threatening to burn the Member);

5. a student reported the Member called another student “gay and that he likes to look at little boys” in class;

6. “what not to say to cops if you get pulled over” (speech topic); and

7. “are you sure they were not pink” (in response to journal entry about female student’s embarrassment caused by undergarments showing).

(v) Allegations in the Notice of Hearing that were not proven

36College Counsel did not present any evidence or make submissions on the allegations in paragraphs 4(a), 4(c) and 7(b) of the Notice of Hearing. Accordingly, the Panel finds that those allegations have not been proven, and declines to make a finding of misconduct on those grounds.

(2) Legal Conclusions

(i) The Member engaged in professional misconduct

37The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct under Ontario Regulation 437/97. In particular, the Member abused students verbally, contrary to subsection 1(7); he abused students psychologically or emotionally, contrary to subsection 1(7.2); he failed to adequately supervise a person under his professional supervision, contrary to subsection 1(11); he failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15); he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18); and, he engaged in conduct unbecoming a member, contrary to subsection 1(19).

(a) The Member abused students verbally contrary to subsection 1(7)

38Verbal comments may be made orally or in writing. The Panel finds that the Member abused students verbally by making inappropriate comments in their journals, specifically “selfish and immature”, “fat boy”, “Awwww! Poor [name of student]” and “You suck everyone likes Dumbo/Nemo/Bambi…maybe you’re the type of person who would shoot Bambi and mount it on your wall”, as described above. These comments are abusive because they are degrading and belittling. The comments “I’ll make sure I’m off the road”, “You can buy flame throwers on ebay – cool” and “are you sure they were not pink” demonstrate poor judgment but fall short of abuse as they indicate an ill judged attempt at witticism rather than malice. Teachers should avoid engaging in imprudent attempts at inappropriate humour as such remarks can appear unprofessional and insensitive even if they fall short of verbal abuse.

(b) The Member abused students psychologically or emotionally contrary to subsection 1(7.2)

39The Panel finds that the Member psychologically or emotionally abused students by assigning or permitting inappropriate journal and speech topics, saying or writing “I killed a lamb” during a restorative justice circle and writing “Mr. Orme admitted to owning the gun that killed his wife” on the board. The journal and speech topics encouraged the students to justify criminality (stealing, what not to tell the police), violence (enslavement, burning) and intolerance (enslavement, hatred of old people, accusing someone of urinating in the garbage can). The declarations treated violence as an ordinary and unremarkable subject. Such behaviour communicates an acceptance of criminality, violence and intolerance that is psychologically abusive of Grade [XXX] students. In addition, the verbally abusive remarks described above were emotionally abusive as they were mean and humiliating to the students. Furthermore, calling a student ““gay and that he likes to look at little boys” is completely unacceptable, as a homophobic comment is both verbal and psychological or emotional abuse.

(c) The Member failed to adequately supervise a person under his professional supervision, contrary to subsection 1(11)

40The Panel finds that the Member failed to adequately supervise a Grade [XXX] student by dismissing him several hours early without the principal’s permission. A student facing suspension or expulsion from his home school needs to establish good habits in a transitional program such as the [XXX] and that includes staying in class until the end of the school day.

(d) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to subsection 1(15)

41The Panel finds that the Member failed to comply with section 264(1) of the Education Act, including subsection (b), which states that it is the duty of a teacher to “encourage pupils in the pursuit of learning.” The Member failed to encourage his Grade [XXX] students in their pursuit of learning by dismissing a student early, by assigning inappropriate journal topics and by making inappropriate remarks.

(e) The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18)

42Assessed globally, the Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. His students were at a vulnerable point in their education as they were facing suspension or expulsion from their home schools. He failed to prioritize their well-being and success by repeatedly exercising poor judgment, which made him the subject of three disciplinary investigations by his Board. Instead of acknowledging his deficits and working to correct them, he refused to take the remedial courses required by his Board in a timely manner, with the extensive delay only partly attributable to his leave of absence.

(f) The Member engaged in conduct unbecoming a member, contrary to subsection 1(19)

43The Panel finds that the Member’s conduct was unbecoming of a teacher as described above. Additionally, his use of the title “Zoo Keeper” on his Board email was highly disrespectful of his students and insulting to the teaching profession. The Member’s inappropriate conduct jeopardized the public’s trust in the teaching profession.

J. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

44College Counsel asked the Panel to order a reprimand, a course on professional boundaries with a focus on sensitivity towards students and a two-month suspension. He asked that the reprimand be delivered in person so the Panel may directly address the Member with its concerns. He requested the course be completed prior to the Member’s return to teaching and the suspension be served after he returns to teaching. He submitted this penalty was appropriate, served the principles of specific deterrence, general deterrence and rehabilitation and would protect the public.

45College Counsel submitted that a two-month suspension was appropriate in the circumstances as the Member’s conduct was not of a sexual nature that would place it at the extreme end of the range. He presented the Panel with the following cases in support of the penalty: Ontario College of Teachers v. Ferris, 2013 ONOCT 19; Ontario College of Teachers v. Carter, 2017 ONOCT 72; and Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28.

K. PENALTY DECISION

46On September 18, 2019, the Panel made the following order as to penalty:

1. The Member is directed to appear before the Discipline Committee within 90 days of the Panel’s Decision, Reasons for Decision and Order to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to impose the following terms, conditions or limitations (“TCLs”) on the Member’s Certificate of Qualification and Registration, the fact of such TCLs to be recorded on the Register until such time as they are fulfilled:

(a) 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 a focus on sensitivities towards students, subject to the following conditions;

(i) the Member will provide to the course provider approved by the Registrar a copy of the Panel’s Decision, Reasons for Decision and Order;

(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Panel’s concerns regarding the Member’s professional misconduct;

(iii) 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;

(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 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;

(c) the Member shall complete all of the TCLs outlined in paragraph 2(a) and 2(b) prior to returning to teaching;

3. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months, subject to the following:

(a) the suspension shall commence on the date that the Member returns to teaching after completing the TCLs outlined in paragraph 2;

(b) the suspension shall be served during the school year; and

(c) the fact of the suspension shall be recorded on the Register.

L. REASONS FOR PENALTY

47In arriving at its decision with respect to penalty, the Panel carefully considered the College’s submissions. The Panel was mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection. The Panel also recognizes the principle that like cases should be treated alike.

48The aggravating factors in the Member’s case are the repeated nature of his conduct despite three disciplinary investigations by the Board and his failure to take the remedial course directed by the Board in 2010 until July 2015. The Panel was not pointed to any evidence of mitigating factors.

49The Member’s repeated pattern of inappropriate conduct warrants a reprimand by his peers. Members are expected to assign pedagogically appropriate journal topics and give instructive feedback to student’s work. 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.

50The Panel finds that the course of instruction on professional boundaries with a focus on sensitivities towards 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.

51Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. While this penalty is one month longer than the suspension requested by College Counsel, the Panel notes that it has considerable leeway to choose the appropriate penalty in a contested hearing and a three-month suspension is within the range given by College Counsel and supported by the authorities he cited.

52In Ferris, the member engaged in socially inappropriate dialogue with students on Facebook and took a student out for lunch without permission. In Carter, the member engaged in a socially inappropriate relationship with a student that had elements of “grooming” behaviour such as highly personal emails. Both matters were uncontested with a joint submission on penalty requesting a reprimand, two-month suspension and course on boundary issues, which was accepted. The presentation of a joint submission on penalty is a key distinguishing factor from the present case as, for policy reasons, a tribunal will consider joint submissions on penalty with a high degree of deference. In R. v. Anthony-Cook, [2016] 2 SCR 204, 2016 SCC 43, a decision which pre-dates Ferris but post-dates Carter, the appropriate test was described as intervention only if the proposed penalty is so unreasonable that accepting it would bring the administration of justice into disrepute or be otherwise contrary to the public interest. The same policy considerations do not apply in the matter of a contested hearing where the Panel has considerable leeway as to penalty under section 30 of the Act.

53In Chong Yen, the member made inappropriate comments to students and he yelled, stomped his feet and banged his fist on the desk. The member was the subject of a disciplinary investigation by his Board that resulted in a five-day suspension for this behaviour and this was his second finding of professional misconduct from the Discipline Committee of the College for similar behaviour. In Chong Yen, the member chose not to participate in the hearing, and it proceeded as a contested matter. The Panel ordered a reprimand, three-month suspension and course of instruction regarding anger management and professional boundaries with a focus on sensitivity towards students.

54The conduct described in Chong Yen is quite different from the Member’s conduct but in both cases, the teachers abused students verbally, psychologically and/or emotionally by making inappropriate comments and engaging in unprofessional behaviour. In addition, Mr. Orme failed to supervise a vulnerable student under his professional supervision. Both teachers demonstrated a lack of governability by failing to respond to disciplinary interventions by their Boards. Both teachers chose not to participate in the College’s discipline process by absenting themselves from the hearing. Accordingly, the Panel finds that a three-month suspension is warranted and 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.

55The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

M. Costs SUBMISSIONS OF COLLEGE COUNSEL

56College Counsel asked the Panel to order the Member to pay costs of the hearing in accordance with section 30(5)(4) of the Act, Rule 16.05(3) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee and Tariff A. He asked for $3,000.00 to be paid within three months. He also filed a Bill of Costs (Exhibit 5) for disbursements in the amount of $4.53 to cover the fee for couriering the Notice of Hearing and Disclosure Brief to the Member’s former lawyer. He submitted that $3,000.00 was a reasonable amount for a half-day hearing and that Tariff A relieved him of the obligation of proving the amount was actually paid.

N. Costs decision

57On September 18, 2019, the Panel made the following order as to costs:

1. The Member is directed to pay costs of this proceeding, fixed in the amount of $3,000.00, to the College within 90 days of the date of the Decision, Reasons for Decision and Order.

O. reasons for costs

58The Panel finds it appropriate to exercise its discretion to order costs. The College was put to the expense of a contested hearing and was largely successful in proving the allegations in the Notice of Hearing and achieving the requested penalty. Tariff A permits the College to order up to $10,000 per hearing day to cover the fees of College Counsel (including preparation), Independent Legal Counsel and the Court Reporter without proof of expenditure. The amount of $3,000.00 is reasonable for a half-day hearing and it is appropriate to give the Member 90 days to pay.

Date: October 29, 2019

Nicola Powadiuk, OCT Chair, Discipline Panel

Benoît Dussault, OCT Member, Discipline Panel

Richard Filion Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the beginning of the hearing at the request of College Counsel.