Ontario College of Teachers v Nolis 2019 ONOCT 129

Date: 2019-12-12

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

Paul Nolis, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PAUL NOLIS (REGISTRATION #507131)

PANEL: Tom Potter, Chair

Mary Ellen Gucciardi, OCT

Sara Nouini, OCT

HEARD: November 12 and 13, 2019

Stephanie Sugar and Steven Chadwick, for the Ontario College of Teachers

No one appearing for Paul Nolis

Erica Richler and 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 12 and 13, 2019 at the Ontario College of Teachers (the “College”).

2Paul Nolis (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Annie Lacroix (Exhibit 3), affirmed November 8, 2019, (the “Lacroix Affidavit”) 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. Lacroix, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. In particular, the Member was personally served with the Notice of Hearing and Disclosure Brief on May 6, 2019 (Exhibits “C” and “D” to the Lacroix Affidavit). The Member declined to attend the June 4, 2019 set date hearing but was promptly advised by College Counsel of the November 12 and 13, 2019 hearing dates (Exhibits “H” and “N”). In advance of the hearing, he was advised of the penalty the College would seek in the event of a finding of professional misconduct, and the possibility of a costs award (Exhibit “BB”). The Member consistently acknowledged receipt of the College’s communications and indicated he would not appear at any hearing.

4Although the Member repeatedly stated to College Counsel that he would not attend the hearing, he asked College Counsel to provide the Panel with various documents setting out his position in response to the allegations in the Notice of Hearing. College Counsel advised the Member that she would not make submissions on his behalf and if he wished to call evidence he would need to attend the hearing and do so through the appropriate process (paragraph 20 of the Lacroix Affidavit and Exhibits “AA” and “HH” thereto). She provided the Member’s documents to the Panel at the hearing, as he requested and to demonstrate that he was aware of the allegations. However, she asked that the documents not be admitted for the truth of their contents and, consistent with her prior notice to the Member by email (paragraph 21 of the Lacroix Affidavit and Exhibit “FF” thereto), she asked that any references to settlement discussions in the documents be disregarded by the Panel as inadmissible in accordance with Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 SCR 623. The documents were marked as Exhibit 4 (October 15, 2019 documents from Paul Nolis to the Discipline Committee), Exhibit 5 (October 23, 2019 documents from Paul Nolis to the Discipline Committee) and Exhibit 6 (November 1, 2019 document from Paul Nolis to the Discipline Committee).

5Independent Legal Counsel advised the Panel that College Counsel was appropriately giving these documents to the Panel out of fairness to the Member and that the documents established that the Member had been put on notice of the allegations.

6In light of Ms. Lacroix’s Affidavit and the exhibits thereto, and Exhibits 4, 5 and 6 filed on behalf of the Member, 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. 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.

A. PUBLICATION ban

7The 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. OVERVIEW

8The Member taught for the York District School Board (the “Board”) as an occasional teacher. On November 27, 2014, October 1, 2015 and December 2, 2015, he made numerous inappropriate remarks to students which had a negative psychological or emotional effect, and on September 26, 2017 he left his assignment early.

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(5), 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 dated April 23, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Paul Nolis 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 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

Paul Nolis is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the York District School Board (the “Board”) as an Occasional Teacher.
On or around November 27, 2014, the Member was assigned to [XXX] School ([XXX]”) in Georgina, Ontario. While at[XXX]:

(a) The Member told Student 1, a female student at [XXX], to “shut her mouth”;

(b) The Member referred to Student 2, a male student at [XXX], as “Charlie Brown”;

(d) The Member told a students and/or students to “shut-up”;

(e) The Member referred to students in his class as “little boys and little girls”;

(f) The Member asked whether the class he was covering was applied or academic, and when a student replied “applied”, the Member responded, “well that answers my question”;

(g) The Member told a student and/or students words to the effect of, “you guys don’t have a bright future”;

(h) The Member stated in class, “if someone has the balls to admit they opened up the window put your hand up now.”

On or about October 1, 2015, the Member was assigned to [XXX] School ([XXX]) in Richmond Hill, Ontario. While at [XXX]:

(a) The Member told a student and/or students, “stop flapping your mouths and keep them shut”;

(b) The Member yelled at Student 4, a female student at [XXX], “Oh just go play. Stop making excuses – just play. Keep playing or sit down”;

(c) The Member refused and/or failed to allow Student 5, an injured student, to attend the office to obtain ice for an injury.

On or about December 2, 2015, the Member was assigned to [XXX] School ([XXX]”) in Woodbridge, Ontario. While at [XXX]:

(a) The Member told Student 6, a male student at [XXX], “you’re never going to get to where I was at”;

(b) The Member told a student and/or students to, “shove that attitude in your pocket”;

On and/or after December 2, 2015, the Member engaged in interactions with the Principal of [XXX] which were inappropriate and/or unprofessional.[1]
On or about September 26, 2017, the Member was assigned to [XXX] School ([XXX]”) in Keswick, Ontario. While at [XXX], the Member:

(a) Left his assignment early;

(b) Failed to take adequate steps to ensure that the [XXX] room was locked, in order to prevent students from using the room without supervision.

D. THE MEMBER’S PLEA

11As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

12The College called two witnesses to give oral evidence: Ann-Louise Pace and Janet Hicks, and submitted sworn affidavits from three additional witnesses: Erik James Gordon, Louis Lim and Michael David Grieve. The College also put into evidence a Brief of Documents. The Member was provided with the affidavits and summaries of the anticipated evidence of Ms. Pace and Ms. Hicks in advance of the hearing, and advised of his right to cross-examine the College’s witnesses.

13The Panel found Ms. Pace and Ms. Hicks to be credible witnesses. Their evidence was cogent and supported by contemporaneous documents. Although they clearly found the Member to be a challenging person, they did not exhibit any evidence of bias or personal interest in the outcome of the hearing. Similarly, the affidavit evidence was clear, credible and supported by contemporaneous documents that were created in the ordinary course of the affiants’ investigations into concerns about the Member’s behaviour at their schools.

14The Panel notes that hearsay evidence is permitted under subsection 15(1) of the Statutory Powers Procedure Act, Revised Statutes of Ontario 1990, chapter S.22, provided it is relevant to the subject-matter of the proceeding. Accordingly, the students’ written statements and the administrators’ notes of student interviews were admitted as reliable, contemporaneous evidence that was relevant to the allegations.

15As stated above, the Member chose not to attend the hearing, despite adequate notice. However, he asked College Counsel to provide the Panel with various documents setting out his position in response to the allegations in the Notice of Hearing, which were made Exhibits 4, 5 and 6. Although these documents were marked as exhibits at the hearing, the Member did not attend the hearing to attest to their contents nor did he arrange for any other witness to do so. There was no agreement between the parties that would have relieved him of this obligation. Members who wish to challenge the College’s position by presenting their own version of events must attend the hearing and introduce evidence for the Panel to consider. The Panel had no means to assess the veracity of the unsworn statements and assertions in the documents, and the College could not test the Member’s declarations on cross-examination. Accordingly, although Exhibits 4, 5 and 6 were admitted into evidence at College Counsel’s request to show that the Member was aware of the allegations against him, the truth of their contents was not proven because the Member did not attend the hearing and provide testimony to do so. The Panel therefore gave them no weight and did not consider them in coming to a decision on finding in this matter.

16Relevant portions of the College’s evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary.

(1) Ann-Louise Pace

17Ann-Louise Pace is the principal of [XXX] She has been an administrator with the Board since 2005, holding the position of vice-principal at two secondary schools, and principal at Woodbridge College prior to joining her current school as principal in March 2014. She has a Master of Education from the Ontario Institute for Studies in Education, completed an executive leadership program at York University and recently finished the Supervisory Officer’s Qualification Program. She taught the Principal’s Qualification Program Part 2 at York University for five years and has held various executive positions on the Ontario Principals’ Council including President Elect. She testified that she is familiar with the practice and ethical standards expected of teachers and that part of her responsibility as principal is to exemplify them and ensure that staff and student teachers understand them.

18College Counsel requested that Ms. Pace be qualified by the Panel as a participant expert to give evidence on the standards of the profession in the 2014 to 2017 period in accordance with Westerhof v. Gee Estate, 2015 ONCA 206. The Panel qualified Ms. Pace as a participant expert in accordance with the Westerhofdecision because her credentials demonstrate she has the special skill, knowledge, training and experience to give opinion evidence based on her observation of or participation in the events at issue.

19Ms. Pace testified that she has a good recollection of the events of December 2, 2015. The Member was an occasional teacher assigned to cover a Grade [XXX] class in the morning. About half-way through Period 2, her secretary told her she was needed in the Member’s class. She entered the classroom and initially did not note anything out of the ordinary. As she circulated through the room, she noticed the students seemed unnaturally subdued, so she sat down beside one of the students. He told her that things were not going well. The special resource teacher arrived and told Ms. Pace that although things seemed fine now they were not fine before. She remained in the class for the rest of the period, then took a few students with her to the office to get a better sense of what happened. She learned that one of the vice-principals was supporting another student in the Member’s class and that the Member had made comments to a number of male students about their lack of potential. She met individually with three students and learned what the Member had said to them and how it had impacted them.

20The notes these students wrote on the morning of December 2, 2015, describing the Member’s behaviour in class and their reaction to his conduct, were entered into evidence as Exhibit 9. The students were “rattled” and “in a state I had never seen them in before” so Ms. Pace asked them to write an account as a de-escalation exercise. During the lunch hour, Vice-Principal Diane Vivian interviewed a number of students from the class, who gave similar descriptions of the Member’s behaviour and their reactions. Her interview notes were entered into evidence as Exhibit 10.

21Ms. Pace was concerned because a few of the students had arrived about five minutes late for class and a conflict with the Member had quickly erupted. She also interviewed the Member on December 2, 2015 at the end of the school day. The Member maintained that he had done nothing wrong and declined Ontario Secondary School Teachers’ Federation representation. He said he did not call the office for support because he did not think it would have been helpful. The Member became “defensive” and “accusatory” as the interview progressed. He did not acknowledge his effect on the students. Ms. Pace completed an occasional teacher incident report (Exhibit 11), recommended the Member receive training on classroom management, emotional intelligence and supportive interactions with at-risk students, and requested that the Member not return to her school.

22Ms. Pace subsequently reviewed the surveillance footage from the hallway outside the Member’s class. After two students left his class to seek assistance, she observed the Member looking into the corridor. He did not advise the office that the students had left his class, which was contrary to standard high school procedure.

23Ms. Pace was familiar with the students in the Member’s class. The class was in the College pathway so some of the students had academic challenges. Some of the students left class and came to the office for assistance or sought out a supportive adult such as the school’s child and youth worker. Ms. Pace felt the Member’s conduct was inappropriate and emotionally upsetting for the students. She was concerned that he had created an unsafe environment that was not conducive to learning.

24On December 3, 2015, the Member emailed Ms. Pace to inquire if the “5 students sent to your office for vulgarity towards me as an occasional teacher were or were not suspended as per Board Policy?” The Member had not sent any students to the office; the students who came to the office on December 2 had done so of their own volition. Ms. Pace requested a further meeting with the Member and advised him that she had submitted an occasional teacher incident report to the Board. The Member responded “I believe the incident report should be regarding your behaviour not mine” and asked her to advise the Board that he wished to submit a report “regarding your actions, or lack of actions”. Despite multiple attempts to arrange a meeting, the Member declined to attend, and threatened to report Ms. Pace to the College for professional misconduct (Exhibit 12).

(2) Janet Hicks

25Janet Hicks has worked in human resources at the Board since 1991 and is currently Senior Manager, Human Resource Services. She was responsible for occasional teachers until the Fall of 2016 including monitoring attendance, sick leave, fill rates, dispatch and discipline. She would receive all occasional teacher incident reporting forms on behalf of the Board. This form was completed by a principal or vice-principal if they did not want an occasional teacher to return to their school and required the administrator to provide the teacher with feedback and the opportunity to involve the union. The form was discontinued in 2017.

26The Member began teaching with the Board in 2006 and would teach around 100 days (out of 194 teaching days) per year. He was “a lot of work” and she believes that many principals did not follow through on reporting issues with him to the Board because he would make the process difficult for them.

27Ms. Hicks received the occasional teacher incident reports completed by Principal Erik Gordon (Exhibit 17), Vice-Principal Louis Lim (Exhibit 18) and Principal Ann Pace (Exhibit 11). She would review the student statements but she would not speak personally with the students. She had no concerns about the administrators’ investigations. In each instance, she asked the Member to come for a meeting and offered him union representation, and each time he declined. As the process was non-disciplinary, she could not compel his attendance, nor could the Board require him to follow the administrators’ recommendations for improvement. He consistently took the position he had done nothing wrong.

28The Member wrote emails to Ms. Hicks accusing Ms. Pace of preparing a “fabricated misleading false report”, creating “an extremely dangerous situation for the students and myself” and displaying professional misconduct. Although Ms. Hicks told the Member to go through his federation, he continued to email her directly. She described him as “tough”, “a bully”, “unprofessional” and “exceptional in terms of how challenging he was”.

29By letter dated February 19, 2016 (Exhibit 21), the Board issued the Member a formal written reprimand with sanctions, following prior reprimands for inappropriate interactions with students and unprofessional and insubordinate behaviour. Ultimately, the Board attempted to terminate the Member for cause effective October 12, 2017 (Exhibit 21), but he was permitted to resign instead. Ms. Hicks was on vacation at the time of his resignation so she does not know the background but believes that his resignation followed discussions between the Board and his federation.

(3) Erik James Gordon

30In 2014, Erik James Gordon was principal of [XXX]. On November 28, 2014, he was notified by one of his teachers that several students had complained about the Member, an occasional teacher covering their class the previous day. He decided to speak with each of these students. Two of them provided him with a written statement of their recollection (Exhibits “B” and “C”). He made notes of his interviews with the other four students (Exhibits “D”, “E”, “F” and “G”) and his follow-up with one of the students who wrote a statement (Exhibit “H”). He concluded that the students were “upset, offended, put down, and shocked” by the Member’s behaviour and they “regarded his comments as inappropriate, disrespectful, derogatory, and hurtful, and felt that they were sufficiently odd to report Mr. Nolis’ behaviour to their teacher the following day”. Following these interviews, Mr. Gordon completed an occasional teacher incident report (Exhibit “I”), and requested that he not return to the school.

31Mr. Gordon emailed the Member in December 2014 to arrange a telephone call to discuss his November 27, 2014 behaviour, but the Member refused and responded in a manner Mr. Gordon described as “inappropriate and disrespectful”. Exhibit “J” to Mr. Gordon’s affidavit contains a copy of this correspondence and indicates that the Member accused Mr. Gordon of threatening behaviour, harassment, retaliation, disrespectful behaviour and creating an extremely stressful situation for the Member. He also told Mr. Gordon he would report him to the College.

(4) Louis Lim

32In October 2015, Louis Lim was a vice-principal at [XXX]. On October 1, 2015, he was notified by a teacher that three students left their Grade [XXX] class to register a complaint about the Member, the occasional teacher assigned to their class. He interviewed each of these students on October 5, 2015. His interview notes are attached to his affidavit as Exhibits “B”, “C” and “D”. One of the students recounted that the Member refused to allow her to get ice for an injury sustained in gym class and another described feeling so fearful of the Member that she dared not ask for ice for her own injury. He concluded that the students’ concerns were genuine and, as a result, he completed an occasional teacher incident report (Exhibit “E”) and requested that the Member not return to the school. He shared the contents of the report with the Member by telephone.

(5) Michael David Grieve

33Michael David Grieve is the principal of [XXX] and held this position in September 2017. On September 27, 2017, he was advised that, the day before, a student had sustained an injury requiring medical attention while using the [XXX]room without teacher supervision. He reviewed the surveillance footage of September 26, 2017 to determine what happened. He observed the Member, an occasional teacher assigned to the school, dismissing his class before the scheduled end of class and leaving the [XXX]room doors unlocked. The Member did not remain to dismiss the students at the bell. The student then entered the [XXX]room through the unlocked door. Staff members were expected to ensure the [XXX]room doors were locked, following use, to prevent unsupervised access and possible injury to students.

34Mr. Grieve contacted the Member by email and voicemail, requiring him to attend a meeting on October 3. 2017. The Member refused to meet and responded by email in a manner Mr. Grieve found “unprofessional and accusatory”. Exhibits “D” and “E” to Mr. Grieve’s affidavit contain a copy of this correspondence and indicate that the Member accused Mr. Gordon of mismanagement, bullying, abuse of authority, causing the Member and his wife stress and anxiety, treating the Member as a criminal and being an “autocratic administrator”. He also stated he would report Mr. Grieve’s behaviour to the Board’s Director.

F. SUBMISSIONS OF COLLEGE COUNSEL

35Counsel stated that the College was proceeding with the allegations in respect of the Member’s conduct towards students but not in respect of the Member’s conduct towards Ms. Pace particularized in paragraph 6 of the Notice of Hearing. The Board reported to the College by letter dated February 22, 2016 (Exhibit 22) that the Member had been issued a written reprimand with sanctions in relation to his conduct with Ms. Pace, his refusal to meet with the Board in respect of his December 2, 2015 behaviour and his “inappropriate, threatening and insubordinate” communications to the Board. The Registrar of the College notified the Member by letter dated March 24, 2016 (Exhibit 23) that he had decided not to initiate a complaint against the Member as he considered that the Board’s actions had addressed any public interest in regard to the matter. College Counsel pointed out that the allegations with respect to the students only came to the College’s attention when the Board attempted to terminate the Member’s employment in October 2017 and hence there has been no prior College determination of these allegations. Accordingly, proceeding with the allegations in respect of the students does not result in “double jeopardy” as the Member is not being prosecuted twice before the College for the same misconduct.

36College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. She therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

37According to College Counsel, the Member breached the standards of the profession by making inappropriate comments to students and using an angry tone which failed to create a safe environment that fosters learning. At[XXX], he refused to allow a student to get ice for an injury sustained in gym class and made another student so fearful that she was scared to ask for ice when she injured herself.

38College Counsel submitted that the Member abused students verbally by making comments that were inappropriate in tone and content on multiple occasions. Ms. Pace testified to the emotional and psychological impact on the students who left the Member’s class seeking assistance as well as the students who observed the Member’s behaviour directed toward others and became fearful.

39College Counsel submitted that the Member failed to supervise students by sending students out of class without telling the office and by leaving the [XXX]room unlocked so a student could enter unattended.

40Finally, College Counsel submitted that the Member breached subsections 264(1)(b), (d) and (l) of the Education Act by failing to encourage students in the pursuit of learning, failing to assist in developing co-operation among staff members and failing to perform his assigned duties. He created a hostile learning environment, engaged in aggressive bullying and failed to follow remediation measures. According to College Counsel, his behaviour was disgraceful, dishonourable or unprofessional and unbecoming of a member.

G. DECISION ON FINDING

(1) Onus and standard of proof

41The 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

42Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on November 13, 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).

H. REASONS FOR DECISION

43As College Counsel submitted, the College retains jurisdiction over the Member, despite his retirement, by virtue of subsection 14(5) of the Act.

44The 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.

45Prior to the Panel commencing deliberations, Independent Legal Counsel advised the Panel to carefully review the particulars in the Notice of Hearing in reaching a decision on finding as the particulars constitute notice to the Member of what the case is about and it would be procedurally unfair to make findings on matters completely different than alleged. The Panel notes that extensive evidence was given about the Member’s interactions with school and Board administrators but the particulars in the Notice of Hearing make no mention of this conduct[2] in support of the allegations of misconduct. Accordingly, the Panel considers this evidence with respect to the Board’s investigation of the Member’s classroom conduct and progressive discipline process to provide context for the allegations and not to ground separate findings of professional misconduct.

(1) Factual Findings

(i) On or around November 27, 2014, the Member made a number of inappropriate remarks to students while teaching at [XXX]

46The evidence with respect to the Member’s conduct at [XXX] on November 27, 2014 was submitted through the affidavit of Principal Erik Gordon. Mr. Gordon’s affidavit includes contemporaneous statements written by students (Exhibits “B” and “C”), his notes of student interviews (Exhibits “D”, “E”, “F”, “G” and “H”) and the occasional teacher incident report he submitted to the Board (Exhibit “I”).

47The Panel finds that Mr. Gordon’s affidavit provides reliable and sufficient evidence to show that on November 27, 2014 the Member made the following inappropriate comments to students:

(a) he told a female student to “shut her mouth” (Exhibit “B”);

(b) he referred to a male student as “Charlie Brown” (Exhibit “G”);

(d) he told students to “shut up” (Exhibit “C”);

(e) he referred to students as “little boys and little girls” (Exhibits “B” and “H”)

(f) he asked the students whether the class he was covering was applied (College pathway) or academic (University pathway) and when told it was an applied class he responded “well, that answers all my questions” (Exhibit “C”);

(g) he told the students “you guys don’t have a bright future” (Exhibit “C”); and

(h) he said “if someone has the balls to admit they opened up the windows, put your hand up now” (Exhibit “B”).

(ii) On or around October 1, 2015, the Member behaved inappropriately towards students while teaching at [XXX]

48The evidence with respect to the Member’s conduct at [XXX] on October 1, 2015 was submitted through the affidavit of Vice-Principal Louis Lim. Mr. Lim’s affidavit includes contemporaneous notes of his interviews with students (Exhibits “B”, “C” and “D”) and the occasional teacher incident report he submitted to the Board (Exhibit “E”).

49The Panel finds that Mr. Lim’s affidavit provides reliable and sufficient evidence to show that on October 1, 2015 the Member behaved inappropriately towards female students in a Grade 9 physical education class in the following manner:

(a) he told students “Stop flapping your mouths and keep them shut” (Exhibit “B”);

(b) he yelled at a student “Oh just go play, stop making excuses – just play” and “Keep playing or sit down” when she tried to retrieve her practice shirt from the change room (Exhibit “B”); and

(c) he refused to allow a student who injured her finger while playing [XXX](subsequently diagnosed as fractured) to get ice for her injury (Exhibit “C”).

(iii) On or around December 2, 2015, the Member made inappropriate remarks to students while teaching at [XXX]

50Principal Ann Pace testified to the Member’s conduct at [XXX] on December 2, 2015 while teaching a Grade [XXX] class.

51The Panel finds that Ms. Pace’s testimony, in conjunction with the contemporaneous statements written by students (Exhibit 9), Vice-Principal Diane Vivian’s notes of her student interviews and of Ms. Pace’s interview of the Member (Exhibit 10), and the occasional teacher incident report submitted by Ms. Pace to the Board (Exhibit 11), provides reliable and sufficient evidence to show that on December 2, 2015 the Member made the following inappropriate comments to students:

(a) he told a student “you’re never going to get to where I was at” (Exhibit 10); and

(b) he told students “Take that attitude and shove it in your pocket” or words to that effect (Exhibit 10).

52The Panel notes that the Member admitted making the above remarks when interviewed by Ms. Pace, as noted by Ms. Vivian (Exhibit 10). The Panel declines to find that the Member used his middle finger to point to the classroom door when asking students to leave (as alleged at paragraph 5(c) of the Notice of Hearing) as the interview notes record that he denied this and demonstrated using his “pointer finger” instead.

(iv) On or around September 26, 2017, the Member behaved inappropriately towards students while teaching at [XXX]

53The evidence with respect to the Member’s conduct at [XXX] on September 26, 2017 was submitted through the affidavit of Principal Michael Grieve. Mr. Grieve’s affidavit is based upon his personal recollection and review of contemporaneous notes.

54The Panel finds that Mr. Grieve’s affidavit provides reliable and sufficient evidence to show that on September 26, 2017 the Member left his assignment early and failed to ensure the [XXX]room was locked. In particular, Mr. Grieves reviewed video footage that showed the Member dismissing his class before 3:00 p.m. (which is before the scheduled end of class), going over to the [XXX]room doors but failing to clear the latch keeping them open, and leaving before the dismissal bell. A student subsequently entered the [XXX]room and injured his hand.

(2) Legal Conclusions

The Member engaged in professional misconduct

55The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct under the following subsections of Ontario Regulation 437/97. The Member failed to maintain the standards of the profession, contrary to subsection 1(5); he 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 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 failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

56The Panel relies on the evidence of Principal Pace, who was qualified as a participant expert. Ms. Pace testified that the Member’s conduct was inappropriate, emotionally upsetting for his students and created an unsafe environment that was not conducive to learning.

57Teachers are expected to show their commitment to students and student learning by treating students with respect and being sensitive to factors that influence individual student learning. The Member failed to demonstrate this commitment by making comments that belittled students (“little boys and little girls”), telling students to “shut up” or “shove that attitude in your pocket”, making fun of a student’s appearance (calling a male student with long hair a “girl”, calling a student “Charlie Brown”), and making comments to students in an applied class which implied they would not be successful (“well that answers my question”, “you guys don’t have a bright future” and “you’re never going to get to where I was at”). One of the students wrote in his written statement, “We showed him respect by saying his name and he showed no respect by calling everyone little boys and girls” (Exhibit “B” to Gordon affidavit) and another student wrote, “He was just really full of himself, sarcastic, rude and mean” (Exhibit “C” to Gordon affidavit).

58The concept of respect described in the Ethical Standards for the Teaching Profession means honouring students’ emotional wellness and cognitive development. The concept of care includes insight for developing students’ potential. These comments show neither care nor respect and were particularly egregious when directed at a class of students experiencing academic challenges.

59The Member also failed to demonstrate care and respect when he refused to allow an injured student to seek first aid and yelled at another student when she tried to get her practice shirt from the change room.

(b) The Member abused students verbally and psychologically or emotionally, contrary to Ontario Regulation 437/97, subsections 1(7) and 1(7.2)

60The comments described above amount to verbal abuse because the Member abused his position of trust and authority to make belittling and demeaning comments to the students. They also constitute psychological or emotional abuse. Ms. Pace testified that the students were “rattled” and “in a state I had never seen them in before”. Principal Gordon described the students’ reactions as “upset, offended, put down and shocked”. Vice-Principal Lim recounted that, after the Member refused to let the injured student seek first aid, another student became so scared of him that she did not dare ask the Member for ice after she sprained her finger.

(c) The Member failed to adequately supervise a person under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11)

61The Panel found that the Member dismissed his class early on September 26, 2017 and left before the dismissal bell. This behaviour resulted in a failure to supervise the students under his professional care during school hours and is hence a breach of subsection 1(11). There was no evidence that the student who entered the [XXX]room was under the Member’s “professional supervision” so the Panel makes no subsection 1(11) finding of misconduct in relation to that particular event.

(d) The Member failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15)

62The Member neglected to comply with the duties of a teacher as set out in subsections 264(1)(b) and 264(1)(c) of the Education Act by failing to encourage pupils in the pursuit of learning and failing to act as an appropriate role model. His remarks to students were discouraging and caused several students to leave his class. He did not set a good example by using objectionable language (including “shut up” and “if someone has the balls”) and failing to show compassion for an injured student.

(e) The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19)

63The Member’s comments to students, particularly those in the applied classes, and his refusal to allow an injured student to seek first aid, were acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and conduct unbecoming a member. Teachers are expected to create a welcoming classroom atmosphere and keep students safe. Making denigrating comments to students creates an atmosphere of intimidation and distrust. Denying an injured student first aid and leaving a [XXX]room unlocked does not prioritize student safety. The Member’s behaviour was therefore unprofessional. His conduct was also unbecoming a member in that it undermines the trust and respect accorded to the profession.

I. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

64College Counsel asked the Panel to order a reprimand, coursework and a suspension. She cited the following aggravating factors: 1) the nature of the misconduct and impact on students, 2) the Member’s refusal to participate in the College’s proceedings and Board remediation and 3) the repeated pattern of misconduct. College Counsel first submitted that the Member made highly inappropriate comments to students that resulted in them being fearful and feeling unsafe. He failed to recognize that he needed improvement and to avail himself of the Board’s recommended remediation measures. Second, College Counsel submitted that, while the Member is entitled to contest the allegations, his failure to meaningfully participate in the College’s proceedings and present his defence is a factor that the Panel is entitled to consider as aggravating. Third, College Counsel argued that the misconduct continued over a number of years despite Board warnings and discipline. In terms of mitigating factors, College Counsel noted that the Member taught “quite a lot” since 2006 and the incidents took place over a four-year period between 2014 and 2017.

65College Counsel presented the Panel with the following decisions in support of her submission that a reprimand, coursework and suspension in the range of one to four months was appropriate: Ontario College of Teachers v. Szabo, 2017 ONOCT 56 (no suspension); Ontario College of Teachers v. Bielby, 2018 ONOCT 38 (no suspension); Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15 (one-month suspension); Ontario College of Teachers v. Georgiopoulos, 2019 ONOCT 37 (one-month suspension); Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56 (no suspension); and Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28 (three-month suspension). She referred to Ontario College of Teachers v. Manga, 2017 ONOCT 48 (four-month suspension) but submitted the Member’s conduct did not rise to the same level as his comments to students were not culturally insensitive. All of the above proceedings involved agreements with a joint submission on penalty, with the exception of the two Chong Yen proceedings.

J. PENALTY DECISION

66On November 13, 2019, the Panel made the following order as to penalty:

The Member is directed to receive a written reprimand 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 14 weeks commencing on the date of the Oral Decision and Order relating to this matter and the fact of the suspension is to be recorded on the Register; and
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 commencing or resuming a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding maintaining appropriate boundaries with students and a course of instruction pre-approved by the Registrar regarding classroom management, subject to the following conditions:

(i) the Member will provide to the course practitioners approved by the Registrar, a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course practitioners will provide to the Registrar, for approval, syllabi for the proposed courses which specifically address the Discipline Committee’s concerns regarding the Member’s professional misconduct;

(iii) the syllabi proposed by the course practitioners shall also specify the length of the courses to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioners which:

(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.

K. REASONS FOR PENALTY

67In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was also 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.

68The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel agrees with College Counsel’s submissions on aggravating factors, including the Member’s lack of participation in the discipline process and his pattern of conduct in three different schools. While not aggravating, the Panel also notes the Member’s apparent lack of insight into his behaviour, into his impact on students and into his need for remediation. College Counsel referenced the length of the Member’s teaching career and his frequent acceptance of teaching assignments as a mitigating factor, implying that the Member generally behaved well and there were not many complaints against him when compared to his total teaching days. The Panel gives no weight to this factor in light of Ms. Hicks’ evidence that the Member would actively discourage administrators from proceeding with a complaint against him to the Board and the evidence that three different administrators requested that he not return to their schools.

69The decisions provided by College Counsel demonstrate that a reprimand and coursework are appropriate. 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. The courses of instruction on maintaining appropriate boundaries with students and classroom management will assist in the Member’s rehabilitation and, should he return to teaching, help him make better decisions in any future interactions with students.

70The Panel finds that a suspension near the top of the range is warranted in light of the aggravating factors. All of the cited cases where no suspension was ordered involved joint submissions on penalty associated with an agreement on finding. Those members engaged with the College process and, by acknowledging their misconduct, showed some insight into their behaviour and professional responsibilities. The Member has shown no insight, remorse or willingness to accept responsibility for his behaviour and therefore this mitigating factor is absent in this case. While his comments were not racist, homophobic or culturally insensitive, which would have placed him at the top of the range, he undermined the confidence of students with academic struggles and created an atmosphere of intimidation instead of encouragement. Furthermore, he inexcusably refused to allow an injured student to seek first aid, and created a dangerous condition by leaving the [XXX]room unlocked that resulted in injury to another student. He refused the Board’s remediation attempts by failing to attend meetings and follow the remedial recommendations made by administrators in their occasional teacher incident reports. These aggravating factors warrant a 14-week suspension to demonstrate, to both the Member and to the profession, the Panel’s denunciation of the Member’s behaviour.

71The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

L. costs submissions of college counsel

72College Counsel requested costs of the proceeding in the amount of $12,500 under Rule 16 and Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. She relied upon the decision in Ontario College of Teachers v. Hall, 2019 ONOCT 20 for the factors relevant to the Panel’s consideration. She also cited the following prior decisions of the Discipline Committee where costs of the proceeding were ordered: Ontario College of Teachers v. Weglarz (15 August 2019); Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56; Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28; and Ontario College of Teachers v. Williamson, 2017 ONOCT 20.

73College Counsel submitted that the Panel was entitled to consider how the Member conducted himself once College disciplinary proceedings were initiated and relied upon a selection of email correspondence between the Member and the College over a one-month period (Exhibit 24) as indicative of unreasonable and vexatious behaviour. Despite receiving notice on August 2, 2019 to direct all emails to College Counsel, the Member continued to email College employees directly, compelling College Counsel to advise him on October 8, 2019 that “Your repeated emails to Ms. [XXX]and the College are abusive, harassing, and bullying in nature, and as a result your email communications directly to the College and its staff have been blocked”[3] (paragraphs 22-23 of the Lacroix Affidavit and Exhibits “V” and “GG” thereto). Ms. Lacroix states “to just Ms. [XXX]alone, the Member sent over 280 emails from August to October” (paragraph 22).

M. decision on costs

74On November 13, 2019, the Panel made the following order as to costs:

The Member shall pay the College costs of the proceeding in the amount of $12,500 within six months of the date of this Order.

N. reasons for costs

75In accordance with section 30(5)4 of the Act, Rule 16 and the factors in the Halldecision, the Panel finds it appropriate to make a costs award in this proceeding.

76The Panel recognizes that a costs award is compensatory rather than punitive in nature. However, the Member’s conduct during the course of the disciplinary process is relevant, as uncooperative or vexatious conduct can lengthen the duration of the proceedings and increase the expense to the College.

77The emails in Exhibit 24 demonstrate that the Member engaged in a pattern of unreasonable and vexatious conduct by making unfounded accusations and threats against the College and its Counsel when they were simply conducting themselves according to their professional roles in the discipline process. The Member accused the College and/or its Counsel of “anxiety causing and stress causing abuse”, bias and conflict of interest, tampering with disclosure, wasting OCT resources, disrespecting legal rules, bullying and mismanagement. He accused College Counsel of defaming his character, destroying his retirement, affecting his health, using “nonsensical tactics”, misleading him, lying to him and “padding the billable hours”. He threatened to report her to the Law Society of Ontario, the College, the Board and “Your Law firm senior partners”. He also threatened to initiate claims against the College and College Counsel for defamation, vexatious prosecution, abuse of process, disrespect for “the Double Jeopardy Law” and unreasonable prosecution causing stress, anxiety and mental anguish. In a sign of how extreme and frequent his communications were, the College was compelled to ban his abusive, harassing and bullying emails, and force him to communicate by letter mail. The Panel finds that the Member went far beyond defending himself vigorously on the merits and behaved in an unacceptable manner that attracts a costs award.

78Rule 16.05(3) provides that the College need not prove the cost or expense of a hearing day if the request is equal to or less than the amount set out in Tariff A of $10,000 per day. College Counsel requested $12,500 in accordance with Tariff A as the proceeding endured for 1.25 hearing days.

79The Panel finds this amount to be appropriate.

Date: December 12, 2019

Tom Potter

Chair, Discipline Panel