DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Bonello 2019 ONOCT 118

Date: 2019-11-19

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

Martin Gaeton Bonello, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARTIN GAETON BONELLO (REGISTRATION #444525)

PANEL: Jonathan Rose, Chair Shanlee Linton, OCT Stéphane Vallée, OCT

HEARD: November 12, 2019

Ava Arbuck and Kathryn McChesney, for the Ontario College of Teachers

Jack Brown, for Martin Gaeton Bonello

Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 12, 2019 at the Ontario College of Teachers (the “College”).

2Martin Gaeton Bonello (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.

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 24, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Martin Gaeton Bonello 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);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);²

(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); and

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Martin Gaeton Bonello 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.

2. At all material times during the 2015-2016 school year, the Member was employed by the Peel District School Board (the “Board”) as a Construction Technology teacher at [XXX] School (the “School”) in Brampton, Ontario.

Inappropriate Conduct and Comments:

3. On or about February 4, 2016, the first day of the second semester, the Member directed five students to leave his technology shop classroom. He told three of the students to leave because they had brought their knapsacks to class. Two of the five students were not provided with any explanation. The Member did not advise the students where to go, did not supervise the students when they left, did not notify the administration that the students had been directed to leave his class, and did not attempt to return the students to his classroom, despite being responsible for their supervision. The students remained unsupervised for the remainder of the period.

4. In late February 2016, in front of students and an Education Assistant, the Member said to Student 1, a male student in his class, “I don’t want you to blow up my class. No Afghanis in here!” or “I don’t want you to blow up my class. No Afghanistans in here!”. Student 1 was confused. He looked at the Member, pointed to himself, and asked, “are you talking to me?” The Member responded, “ya, you”. Student 1 was very upset by the Member’s comment and left the classroom immediately.

5. A few days later, Student 1 arrived at the Member’s class a few minutes late. The Member would not allow Student 1 into the classroom, and told Student 1 to go to another room instead. When Student 1 arrived at the other room, he was told by the teachers present that he was not allowed in because the Member had not called ahead to advise he was coming, as per School protocol. Student 1 wandered around the School for the remainder of the period, unsupervised.

Board Investigation:

6. On or about March 1, 2016, the Vice Principal was advised that Student 1 was upset about how the Member treated him in class. The Vice Principal spoke with Student 1, who explained that he felt the Member was polite to other students in class, but treated him differently, like he was “nothing” and “an invisible person sitting in the class”.

7. On or about Friday March 4, 2016, the Member was assigned home with pay pending investigation, effective March 7, 2016.

Health and Safety Concerns Relating to the Member’s Classroom:

8. The technology shop classrooms at the School were each assigned to only one teacher for the duration of a school year. The woodworking technology shop classroom had been assigned to the Member for five consecutive years, beginning in 2011 and up to and including the 2015-2016 school year.

9. Since the Member was first assigned to this classroom, 12 of 23 workplace inspections at the School between 2011 and 2015 identified health and safety hazards in the Member’s classroom in contravention of Board policy and the Occupational Health and Safety Act. The hazards identified included excessive dust, poor housekeeping, electrical hazards, obstructed egress routes, unsafe storage of items, and machine guarding and safety deficiencies relating to twenty different items or machines in the Member’s classroom.

10. On March 7, 2016, investigators from the Board’s Health and Safety Department attended the School to investigate concerns related to safety hazards in the Member’s woodworking shop classroom.

11. The investigators assessed all 31 machines in the Member’s classroom. They reviewed documentation provided by the external contractor who had fabricated and installed machine guarding in all Board technology classrooms in 2011-2012 and who continued to perform guarding work in Board schools when required. They also reviewed documentation provided by the Board’s Maintenance Services department, including Maintenance Work Order records related to the School between January 2014 and March 2016. At the conclusion of their investigation, the investigators identified a number of safety issues and hazards in the Member’s classroom, including:

(a) poor housekeeping, including excessive dust build-up on almost all machines, work surfaces and ventilation ducts;

(b) non-compliance with Workplace Hazardous Materials Information System (“WHMIS”) and chemical safety requirements, and unsafe materials storage;

(c) electrical safety issues;

(d) a number of machines had safety guards removed;

(e) a number of machines had stop buttons removed;

(f) a machine which had been tagged and taken offline for repairs had been used by the Member in violation of health and safety regulations.

12. The investigators also reviewed communications between September 2015 and February 2016, wherein the Member contacted the Board’s Health and Safety department seven times via email, phone call, and fax to complain about his dissatisfaction with the Board’s instructions for the safety of the equipment in his shop classroom.

13. Based on their review of the Member’s classroom and machine conditions, and their review of the communications between the Member and the Board’s Health and Safety department, the investigators concluded the Member had a “blatant disregard for health and safety recommendations made by various parties including the on-site inspector, trained personnel from the Board’s Health and Safety department and independent third-party organizations”, demonstrated by the fact that “multiple hazards, such as housekeeping and machine safety” previously reported through inspections and audits “were still identified” in his classroom on March 7, 2016. In addition, the Member’s communications with Board representatives exhibited his disregard for Board health and safety recommendations, as he “contested inspection findings and dismissed recommendations and findings of other highly trained personnel as `opinions’.” Attached hereto and marked as Exhibit “B” is a copy of the Report prepared by the investigators from the Health and Safety Department dated January 12, 2017.

Board Conclusions:

14. By letter dated September 21, 2016, the Board advised the Member of the outcome of its investigation into his interactions with students, and health and safety concerns. The Board concluded that on February 4, 2016, the Member had kicked five students out of his class without explanation, did not permit them to return, left them without supervision for varying periods of time, and had not communicated the rules and expectations via appropriate communication strategies to his students. With respect to health and safety concerns, the Board concluded that the Member had removed a number of machine guards and stop buttons, had admitted that he used a machine tagged for repair and taken off line in “violation of the health and safety regulations governing the safe operation of the school shop”, and had emailed and faxed the Board’s Health and Safety department to state his disagreement with their instructions regarding the safety of the equipment in the shop, demonstrating his “disregard in following the direction of the Health and Safety department with regards to the safe operation of the machines in the school shop”.

15. As a result of its conclusions, the Member’s prior discipline history, and steps taken by the Board previously to attempt to assist the Member, the Board advised the Member that it intended to recommend the termination of his employment “for cause as well as for wilful misconduct, disobedience, and wilful neglect of duty”. Attached hereto and marked as Exhibit “C” is a copy of the Board’s Discipline Letter to the Member dated September 21, 2016.

16. The Member’s employment with the Board was terminated for just cause, effective October 14, 2016. Following a grievance, the Board rescinded the termination of employment and the Member resigned from the Board, effective October 14, 2016.

Prior History:

17. By letter dated June 2, 2008, the Board disciplined the Member for leaving students unsupervised and for not addressing various Health and Safety concerns, among other issues. The Member received a written caution from the Investigation Committee dated August 24, 2011 with respect to those issues, cautioning the Member to “ensure that [he] consistently use appropriate and effective classroom management strategies and disciplinary measures in [his] practice as an educator”. Attached hereto and marked as Exhibit “D” is a copy of the Board’s discipline letter to the Member and the Investigation Committee’s Written Caution.

18. By letter dated June 12, 2012, the Board disciplined the Member for inappropriate language towards students and for the removal of safety guarding from machines in his classroom, among other issues. In addition to a five-day suspension without pay and mandatory boundaries training, the Member was advised to refrain from using inappropriate language, and to ensure that all shop machinery was properly guarded according to Board policy and consistent with his obligation under the Occupational Health and Safety Act. The Member received a written admonishment from the Investigation Committee dated April 23, 2013, admonishing the Member to “ensure that all shop machinery is properly guarded according to Board policy and consistent with your obligation under the Occupational Health and Safety Act”. Attached hereto and marked as Exhibit “E” is a copy of the Board’s discipline letter to the Member and the Investigation Committee’s Written Admonishment

PLEA OF NO CONTEST

19. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

20. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(11), 1(15), 1(18), 1(19).

21. 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 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 otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) 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;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

22. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, 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.

23. In light of the Uncontested Facts and circumstances, 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 (f) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1) and 1(14) of Ontario Regulation 437/97, be withdrawn. College Counsel requested the Panel’s permission to withdraw the allegations for a number of reasons. First, College Counsel stated that the College had assessed its case and there was no evidence of physical abuse that would support a finding of professional misconduct under subsection 1(7.1). Further, College Counsel submitted that the College was requesting the withdrawal of allegation 1(14) as the College would be relying on the same evidence for a finding of a professional misconduct under subsection 1(5). College Counsel submitted that relying on the same evidence for a finding of professional misconduct under subsection 1(5) and 1(14) would be duplicative. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 12, 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(7.2), 1(11), 1(15), 1(18), and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 18 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 Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in a pattern of unprofessional and inappropriate conduct.

9The Uncontested Facts demonstrate that the Member made a culturally insensitive and unprofessional comment to Student 1. Namely, the Member told Student 1 “I don’t want you to blow up my class. No Afghanis in here!” Through his comment directed at Student 1, the Member contravened section 264(1) of the Education Act by failing to act as positive role model. It is unacceptable for teachers to make demeaning comments to their students, and to model that type of insensitive behaviour for their students. The Member’s comment to Student 1 also constitutes verbal and psychological or emotional abuse because it was culturally insensitive and singled out a student in front of his peers. Student 1 was upset by the Member’s comment and reported feeling like “an invisible person sitting in class”. Members of the profession are expected to communicate appropriately with students at all times, which the Member failed to do.

10Further, the Uncontested Facts demonstrate that the Member failed to adequately supervise his students, as he, on more than one occasion, directed students to leave his class during which time they were left unsupervised. Further, the Member’s disregard for Board policy and compliance with the Occupational Health and Safety Act in his woodworking technology class demonstrates that he failed to adequately supervise his students. The Member’s failure to adequately supervise his students put them at risk. Members of the profession are expected to provide students with a safe learning environment. By leaving students unattended or by disregarding safety measures, the Member jeopardized the safety of his students.

11The Uncontested Facts demonstrate that the Member failed to maintain the standards of the profession, which, among other things, provide that members are expected to demonstrate their commitment to “students’ well-being”. Between 2011 and 2015, 12 of the 23 workplace inspections identified health and safety concerns in the Member’s woodworking technology class. The health and safety hazards identified included: excessive dust, electrical hazards, and machine guarding and safety deficiencies. Members of the teaching profession are expected to prioritize student safety. Through his repeated misconduct, the Member demonstrated a lack of professional judgment and a blatant disregard for the emotional and physical well-being of his students. His conduct was disgraceful, dishonourable and unprofessional, and it was unbecoming a member of the profession.

F. PENALTY Decision

12The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 12, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee within 90 days of the date of the Oral 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 W., 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 suspend the Certificate of Qualification and Registration of the Member for a period of six months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;

3. 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) prior to a resuming or commencing a teaching position or any position requiring a Certificate of Qualification and Registration, 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 supervision and sensitivity training, subject to the following conditions;

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) following 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:

(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

13The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Orton, 2017 ONOCT 100, Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15, and Ontario College of Teachers v. Charette, 2018 ONOCT 32.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are: the repetitive nature of the Member’s misconduct, despite prior warnings from the Board and the College; that the Member continually disregarded Board policy and failed to comply with Occupational Health and Safety Act which put students’ safety at risk; and, the fact that the Member’s racial slur directed at Student 1 led to emotional harm for Student 1. In terms of mitigating factors, the Member entered into an agreement with the College, saving witnesses from having to testify as well as saving the time and expense of a contested hearing, and the Member has had no prior history with the Discipline Committee. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

15The Panel finds that the Member’s repeated pattern of inappropriate and unprofessional conduct, despite prior warnings from the Board and the College, warrants a reprimand by his peers. Members are expected to serve as role models for students, which the Member failed to do by making the culturally insensitive and completely inappropriate comment to Student 1. He also put student safety at risk by dismissing students from class and leaving them unsupervised, and by not immediately rectifying identified health and safety hazards in his woodworking technology class. 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 classroom management with a focus on supervision and sensitivity training 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.

17Given the nature and severity of the Member’s conduct, the Panel finds that a six-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The Member’s misconduct was serious and formed a concerning pattern of inappropriate and unprofessional behaviour. The Member had received prior discipline from his Board and from the College for similar misconduct. The fact that the Member received two suspensions from his Board, and a written caution and written admonishment from the College’s Investigation Committee, raises serious concerns regarding his professional judgment. Members of the profession are expected to create a safe and supportive learning environment for all student and to ensure student safety at all time. His repeated failure to meet these expectation is concerning and demonstrates a blatant disregard for authority. 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.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: November 19, 2019

Jonathan Rose Chair, Discipline Panel

Shanlee Linton, OCT Member, Discipline Panel

Stéphane Vallée, OCT Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2Allegation withdrawn.