DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Wai 2019 ONOCT 117
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
Donald Andrew Wai, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
DONALD ANDREW WAI (REGISTRATION #285693)
PANEL: Rebecca Forte, OCT, Chair Marlène Marwah Stéphane Vallée, OCT
HEARD: November 18, 2019
Charlotte-Anne Malischewski, for the Ontario College of Teachers Philip Abbink, for Donald Andrew Wai Julie Maciura, 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 18, 2019 at the Ontario College of Teachers (the “College”).
2Donald Andrew Wai (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 September 8, 2017 (Exhibit 1) are as follows:
IT IS ALLEGED that Donald Andrew Wai 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);1
(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;2
(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);3 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:
Donald Andrew Wai 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 Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”).
During the 2014-2015 academic year, the Member taught [XXX] and was a [XXX] coach at the School.
At all material times Student 1, Student 2, Student 3 and Student 4 were female students at the School.
During the 2014-2015 academic year, the Member engaged in physical contact with a student and/or students which made these students feel uncomfortable. Specifically:
(a) The member tapped students on their shoulders to get their attention or to provide a verbal cue at school. The member acknowledges that this tapping was not always necessary and a verbal cue would have been sufficient;
(b) The Member used his running shoe to tap Student 4 while she was laying on the ground during [XXX]. During a drill demonstration in which, Student 4 had volunteered to participate, Student 4 was required to lay face down on the ground and the Member stepped over her to demonstrate the type of big step needed to launch a [XXX]. After the demonstration, Student 4 did not initially stand up when asked to do so by the Member, and the Member used his running shoe to tap Student 4 while he again verbally directed her to stand up. The Member acknowledges that his conduct was not appropriate; and
(c) During a [XXX] practice, the Member instructed students to extend their shirts in front of them in a manner that Student 1 reported exposed their stomach. This was not the Member’s intent. The Member was leading students in a drill to practice proper [XXX] form. The drill involved students catching a [XXX] in a pouch created by extending their t-shirt straight out at their front, in order to mimic the [XXX] position required for proper [XXX]. The Member acknowledges that he should have been more careful when instructing students about how to carry out this drill.
By letter dated April 29, 2015, the Member was disciplined by the Board. He was administratively transferred to another school and required to attend Boundaries training, review various policies and advisories regarding the teaching profession. Attached hereto and marked as Exhibit “B” is a copy of the letter of discipline from the Board to the Member.
The Member completed the required review of policies and advisories, and completed a Professional Boundaries Course on May 18, 2017. Attached hereto and marked as Exhibit “C” is a copy of the Member's certificate of course completion.
The Member has continued to successfully teach with the School Board to date without issue.
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), 1(15), 1(18) (unprofessional conduct), 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 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.
D. DECISION
6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7.2) and 1(7.3) 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 allegations was being sought as the evidence outlined in the Agreed Statement of Facts and Guilty Plea did not support a finding of misconduct under subsection 1(7.2) or subsection 1(7.3) and the misconduct was properly described as unprofessional only. 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 18, 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(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 8 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.
9The Admitted Facts demonstrate that the Member tapped female students on the shoulder and with his shoe in a manner which made the students feel uncomfortable. These were inappropriate forms of physical contact and the Member ought to have used verbal cues instead to provide the students with direction. He also instructed female students to extend their shirts during a [XXX] drill in a manner that unintentionally exposed their stomachs. The Member acknowledges that he should have been more careful when instructing students about the drill and that he should have used verbal cues instead of physical contact. The Panel is satisfied that the Member’s conduct was unprofessional and that there is sufficient evidence in the Agreed Statement of Facts and Guilty Plea to make the above finding of misconduct on the enumerated grounds even though the Member’s conduct was towards the less serious end of the spectrum.
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 18, 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 one month 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;
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 200 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 maintaining appropriate professional boundaries with students, subject to the following conditions;
(i) the Member will provide to the 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 Orders 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;
(iii) 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:
(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.
12The parties relied upon a number of prior decisions of the Discipline Committee to demonstrate that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes. College Counsel presented the following two cases: Ontario College of Teachers v. Gerwin, 2017 ONOCT 32 and Ontario College of Teachers v. Shackleton, 2018 ONOCT 1. She submitted that these cases represented the higher end of the range as the conduct was more serious and the members had a prior disciplinary history with the College. In Gerwin, the member received a three-month suspension in addition to a reprimand and coursework, and in Shackleton the member received a two-month suspension in addition to a reprimand and coursework. Member’s Counsel presented the following three cases: Ontario College of Teachers v. Doucette, 2009 ONOCT 18, Ontario College of Teachers v. Khamis, 2017 ONOCT 21 and Ontario College of Teachers v. Gefter, 2017 ONOCT 47 as representative of the lower end of the range. In these three cases, a reprimand and coursework were ordered but no suspensions were given.
13While the Panel appreciates that no two cases are identical, the cases presented were at the low and high ends of the range presented as acceptable outcomes, without an example closer to the penalty sought. The Panel also had concerns that, even with the range presented, the one-month suspension seemed severe given that the Member’s conduct fell at the very low end of the professional misconduct spectrum. Accordingly, the Panel asked College Counsel to provide an example of a one-month suspension decision where the member had no prior disciplinary history with the College, as is the present case. College Counsel presented two additional decisions: Ontario College of Teachers v. Pecile, 2016 ONOCT 41 and Ontario College of Teachers v. Manga, 2017 ONOCT 48. Although the member in Pecile pleaded guilty to psychological or emotional abuse of a student or students, the Panel is satisfied that the conduct was sufficiently comparable to show that a one-month suspension in the present case is within an acceptable penalty range and does not bring the administration of the discipline process into disrepute or is not otherwise contrary to the public interest. The Panel appreciates that the parties came to an agreement which represents a negotiated compromise between adversarial parties. 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.
14The mitigating factors in the Member’s case are that the Member admitted his misconduct, saving the time and expense of a contested hearing, has completed a professional boundaries course, has not been the subject of discipline proceedings in the past and has continued to teach without issue. There are no aggravating factors. After weighing these factors, the Panel reluctantly accepted the penalty proposed by the parties, because it is not so unreasonable as to bring the administration of justice into disrepute.
15The Panel finds that the Member’s conduct warrants a reprimand by his peers. Tapping students on the shoulder and tapping a student lying on the ground with a shoe to get their attention is disrespectful. Members are expected to use verbal cues in such situations to provide students with direction. 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.
16The Panel finds that the course of instruction regarding maintaining appropriate professional boundaries with 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. The Panel notes that the Member has already completed a professional boundaries course given by the Elementary Teachers’ Federation of Ontario following these events.
17The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: November 20, 2019
Rebecca Forte, OCT Chair, Discipline Panel
Marlène Marwah Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel