DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Scott Martin McPherson, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
SCOTT MARTIN McPHERSON (REGISTRATION #428943)
PANEL: Jean-Luc Bernard, OCT, Chair Godwin Ifedi Sara Nouini, OCT
HEARD: February 27, 2019
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk
Jerry Raso of the Ontario English Catholic Teachers’ Association, for Scott Martin McPherson
Erica Richler 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 February 27, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
An Amended Notice of Hearing dated June 20, 2018 (Exhibit 1) was served on Scott Martin McPherson (the “Member”) inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for February 27, 2019.
The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
The allegations against the Member in the Amended Notice of Hearing are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student or students 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);
(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);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 contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);2
(g) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);3
(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); and
(i) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Scott Martin McPherson is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Huron-Superior Catholic District School Board (the “Board”) as an [XXX] [XXX] teacher at [XXX] School (the “School”) in Sault Ste. Marie, Ontario.
Student 1:
During the 2013-2014 school year, Student 1 was a [XXX]-year old Grade [XXX] male student at the School, and in the Member’s Grade [XXX] [XXX] class.
On January 29, 2014, during [XXX] class, the Member noticed that Student 1’s duo-tang was messy. Although the Member knew that Student 1 did not like to be singled out in class, he took Student 1’s duo-tang and made an example of it by demonstrating to the class how to organize it quickly. When finished, he intended to tap Student 1 with the duo-tang as a form of encouragement. The Member tapped Student 1’s head twice with the duo-tang and, as he swung it towards Student 1 a third time, he accidentally hit Student 1 in the face with it, striking Student 1’s cheek.
Student 1 was surprised and embarrassed in front of his classmates by this incident, especially when his classmates laughed as the Member hit him in the face. Student 1 was not injured physically. He was upset by the incident and reported it to his parents that evening.
Student 1’s parents contacted the School the following day. The Director of Education assigned the Member to home duties pending investigation. The Board concluded that the Member exercised poor judgment, but did not intend to hurt or harm Student 1. The Board reminded the Member of its “hands off policy” with respect to physical contact with students, and the Member returned to his teaching duties including teaching Student 1 in his Grade [XXX] [XXX] class.
Student 2:
During the 2014-2015 school year, Student 2 was a [XXX]-year old Grade [XXX] male student at the School.
On or about December 2, 2014, Student 2 was arguing with another student over a mini hockey stick while in line waiting to go into the School following recess. The Member was concerned for the safety of the other students in line, given the potential escalation of Student 2 and his friend’s struggle over the mini stick, and advised Student 2 and his friend to stop what they were doing. Student 2 and his friend continued to argue over the mini stick despite the Member’s warning that recess was over.
After a second verbal warning which the students ignored, the Member came over to Student 2. He grabbed Student 2 by his jacket collar, lifting him off the ground at least to his “tippy toes” as he did, and yelled at Student 2, “get to the back of the line.”
Student 2 felt pressure on the front of his neck as the Member grabbed and held him by his jacket collar. Student 2 was frightened, but was not injured physically.
Student 2 reported the incident to his Principal later that day, and the Member was reassigned to the curriculum department pending the outcome of an investigation. Police were contacted and charged the Member with two counts of assault, the first in relation to the incident involving Student 1 in January 2014, and the second in relation to the incident involving Student 2 in December 2014.
On April 21, 2015, the Member attended a three-hour workshop on “Professional Boundaries: Appropriate and Professional Relationships.”
By letter dated September 2, 2016, the Board advised the Member: “notwithstanding that it was made clear to you that physical contact with a student would not be tolerated, you were involved in a further incident on December 2, 2014, involving the use by you of physical force against a student in the school playground. Once again you violated the Board’s Safe Schools Policy.” The Board suspended the Member without pay for 20 working days, concluding that he had “engaged in even more egregious misconduct of the same type within a year.” Attached hereto and marked as Exhibit “B” is a copy of the Board’s Discipline Letter to the Member. A grievance submitted by the Member’s union is currently outstanding.
Court Proceedings:
Following a trial in the Ontario Court of Justice where the Member testified and admitted to engaging in the conduct described in paragraphs 4, 8 and 9 above, on April 11, 2016, the Court dismissed the charge of assault in relation to Student 1, finding that the Member’s conduct did not rise to the level of criminal culpability – the contact was minimal, accidental, and without frustration or intent to assault or injure, although it was “ill-advised and not acceptable”, having occurred in a classroom where safe schools practices are implemented.
The Court found the Member guilty of assaulting Student 2, concluding that the amount of force used by the Member in the circumstances was unreasonable. On October 3, 2016, the Member received a conditional discharge with twelve months of probation with conditions.
The Member successfully appealed his conviction in the Superior Court of Justice, arguing that the trial judge’s written reasons were insufficient. On March 20, 2018, the appeal judge agreed, set aside the conviction, and ordered a new trial. On April 9, 2018, in the Ontario Court of Justice, the charge of assault in relation to Student 2 was stayed at the request of the Crown.
The Member acknowledges that his conduct fell below the standards of the profession. Attached hereto and marked as Exhibit “C” is the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession.
GUILTY PLEA
By this document,4 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), 1(7.2), 1(15), 1(18) 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 waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (d), (f) and (g) of the Amended Notice of Hearing, namely that the Member contravened subsections 1(14), 1(16) and 1(17) of Ontario Regulation 437/97, be withdrawn. The Committee granted these requests.
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on February 27, 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), 1(7.2), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 17 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
Paragraphs 4, 9 and 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 9 and 10 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Paragraph 4, 5, 9 and 10 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 4 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 4 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 4 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
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”);
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 of instruction pre-approved by the Registrar regarding classroom management with a focus on adolescent development and interactions with students, subject to the following conditions;
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:
(iii) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
PENALTY DECISION
In an oral decision rendered on February 27, 2019, 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.
The Committee finds that the Member’s poor professional judgment and his use of physical force against students warrants a reprimand by his peers. The Member acted inappropriately by singling out Student 1 in front of the class and by hitting him in the face with a duo-tang, which made the class laugh and embarrassed the student. Later that same year, the Member grabbed Student 2 by his jacket collar, lifting him off the ground as he did so, and yelled at him, which frightened the student. Both students were [XXX] years old at the time of these incidents. It is unacceptable for teachers to behave in an aggressive manner with students. Members of the teaching profession are expected to foster safe and supportive learning communities and to model respectful behaviour for students. The Member fell short of meeting these expectations. 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.
Although the Member has already completed a “Professional Boundaries” workshop, the Committee finds that the course of instruction regarding classroom management with a focus on adolescent development and interactions with students will assist in the rehabilitation of the Member. This course will be specifically tailored to the misconduct that gave rise to this hearing, and it will therefore help to ensure that the Member does not repeat his past mistakes. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: February 27, 2019
______________________________
Jean-Luc Bernard, OCT
Chair, Discipline Panel
______________________________
Godwin Ifedi
Member, Discipline Panel
______________________________
Sara Nouini, OCT
Member, Discipline Panel