DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v McDonald 2019 ONOCT 104

Date: 2019-11-04

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

Lucas Thad McDonald, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LUCAS THAD MCDONALD (REGISTRATION #430101)

PANEL: Irene Dembek, OCT, Chair Mary Ellen Gucciardi, OCT Godwin Ifedi

HEARD: October 10, 2019

Eli Mogil, for the Ontario College of Teachers D. Jared Brown, for Lucas Thad McDonald 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 October 10, 2019 at the Ontario College of Teachers (the “College”).

2Lucas Thad McDonald (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 a finding of professional misconduct and the Member was contesting penalty only.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to section 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated April 10, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Lucas Thad McDonald 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);¹

(b) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(c) 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);³

(d) 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

(e) 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:

1. Lucas Thad McDonald 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, the Member was employed by the Durham District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Oshawa, Ontario.

3. On or about June 23, 2017, a Board administrator received a telephone call from the parent of a student at the School, reporting concerns with posts made by the Member on the social media platform Twitter. The parent was concerned about racial and homophobic comments, and comments regarding gender issues.

4. Following the parent phone call on June 23, 2017, the Board and the School Principal further investigated and reviewed the Member’s Twitter account. Screenshots were taken of retweets that were inappropriate. Attached hereto and marked as Exhibit “B” is a copy of the Member’s retweets which were viewed by administrators.

5. An investigation was conducted by the Board and School Principal. Attached hereto and marked as Exhibit “C” is a copy of the School Principal’s June 2017 incident report.

6. On July 18, 2017, the Member received a letter of discipline from the Board. The Member received a two-day suspension without pay, and was administratively transferred to another school. Attached hereto and marked as Exhibit “D” is a copy of the Board’s July 18, 2017 letter of discipline to the Member.

7. On February 23, 2011, the Ontario College of Teachers approved a professional advisory on the use of electronic communication and social media. Attached hereto and marked as Exhibit “E” is a copy of the College advisory.

GUILTY PLEA

8. By this document the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

9. 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(18), and 1(19).

10. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(e) he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the opportunity to obtain advice from legal counsel.

11. In light of the Admitted Facts and circumstances and the guilty plea, the Ontario College of Teachers and the Member jointly 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 (a), (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(14) and 1(15) of Ontario Regulation 437/97, be withdrawn for reasons described below. The Panel granted the request.

7Having considered the Agreed Statement of Facts and Guilty Plea, the Member’s oral confirmation of his written guilty plea by virtue of the plea inquiry administered at the hearing and the submissions of the parties, the Panel rendered an oral decision on October 10, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19).

E. REASONS FOR DECISION

8The Panel granted the College permission to withdraw the allegations relating to subsections 1(5), 1(14) and 1(15) of Ontario Regulation 437/97 in accordance with Rule 13.13 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. The Panel is satisfied with College Counsel’s stated reason for the withdrawal as a by-product of negotiations in an adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea.

9The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 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.

10Exhibit “B” to the Agreed Statement of Facts and Guilty Plea contains copies of screenshots taken of the Member’s Twitter account. These screenshots show that the Member retweeted numerous inappropriate posts, including the following:

• “We want a Travel Ban, heavy surveillance on all mosques, mass deportations and treat all apologists as collaborators.” @POTUS USA USA USA - “This needs to happen in Canada too since we have unprotected borders.”

• “Liberal Logic: A boy who identifies as a girl is a girl, but a terrorist who identifies as a Muslim is not a Muslim.”

• “Some doctors want to let “trans” kids get cross-sex hormones & surgery even earlier. The risks haven’t been studied.” - “Disgustingly, sick child abuse…”

• “If Cdn’s want Ca to remain Cdn then we must tell UN we will not take refugee immigrants unless they are economically viable. No more welfare.”

11The retweeted posts included offensive comments about Muslims, immigrants, refugees and individuals who identify with a gender different from their gender assigned at birth.

12By retweeting the posts without critical comment, the Panel has determined that the Member implicitly expressed his agreement with the objectionable content in them. The Member also gave them broader dissemination. The content in the posts is inconsistent with the College’s April 2011 professional advisory on the use of electronic communication and social media (“Professional Advisory”). The Professional Advisory states (p. 3):

“Maintaining professional boundaries in all forms of communication, technology-related or not, is vital to maintaining the public trust and appropriate professional relationships with students. Members must be aware of the numerous challenges and the ramifications associated with the use of electronic communication and social media.”

13The Professional Advisory recommends that Members (p. 6):

“Consider whether any posting may reflect poorly on you, your school or the teaching profession.”

14While the Member used his personal Twitter account, the Professional Advisory states (p. 3):

“Teaching is a public profession. Canada’s Supreme Court ruled that teachers’ off-duty conduct, even when not directly related to students, is relevant to their suitability to teach.⁴ Members should maintain a sense of professionalism at all times – in their personal and professional lives.”

15The retweeting of these posts reflects poorly on the Member and the teaching profession. A Muslim student, a refugee or immigrant student, and a student who identifies with a gender different from the one assigned at birth, among others, would likely feel uncomfortable with having the Member as their teacher if they knew he found such views worthy of sharing. The fact that a parent complained about the Member’s tweets clearly demonstrates that the retweets were concerning to a member of the school community. The Member’s behaviour had the potential to jeopardize his professional relationships with students and erode the public’s trust in teachers. By retweeting these objectionable posts, the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional and unbecoming a member.

F. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

16The College submitted that the Panel ought to order a penalty that includes the following elements:

1. an oral reprimand;

2. a suspension of one to three months; and

3. a course on appropriate communications and sensitivity training.

17College Counsel presented two cases to the Panel in support of the proposed penalty: Ontario College of Teachers v. Ubertelli, 2015 ONOCT 81; and Ontario College of Teachers v. Sadaka, 2019 ONOCT 60. He also submitted Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 1996 CanLII 237 (SCC) at pp. 757-8 and Ontario College of Teachers v. Fromm, 2007 LNONCTD 32 at para. 108, for the proposition that a teacher’s off duty conduct is within the College’s jurisdiction.

18College Counsel submitted that the reprimand and suspension would serve the principles of specific and general deterrence and the course work would serve the principle of rehabilitation. He advocated a suspension in the range of one to three months on the basis that the Member’s misconduct was less culpable than the conduct in the cited cases but, given the nature of the retweets, warranted a suspension to protect the public interest. The number of retweets did not indicate a momentary lapse in judgment and, in light of the College’s 2011 Professional Advisory, the November 2016 Board procedure on Professional and Personal Use of Social Networking, Digital Communication Applications, and Web Sites as well as the case law, the Member ought to have realized his actions could attract disciplinary consequences. Forwarding a tweet conveys implicit agreement with the tweet unless the user explicitly states otherwise. He argued that the Twitter messages were a communication to “the world at large” that conflicted with the values of the education system, which recognizes the equality and dignity of every person, and the College does not need proof of actual harm to impose a penalty.

G. PENALTY SUBMISSIONS OF THE MEMBER

19Member’s Counsel submitted that a reprimand alone was the appropriate penalty as the conduct involved a small number of retweets that were “political in nature”, the conduct occurred in the Member’s private life, and there was no evidence of harm to students, the School or the College. He argued strenuously against a suspension on the basis that the conduct was “at the de minimis end of the spectrum” and “within the purview of public political discourse”. He pointed out the Member’s lack of any prior or subsequent disciplinary history, the short period (June 4 to 20, 2017) of the activity and the Member’s immediate and permanent deactivation of his Twitter account on June 23 when the concerns were first brought to his attention. He maintained the Member had a “momentary lapse in judgment … in the absence of a clear standard for the profession on this issue” and that, by pleading guilty, he was saving the College the concern of establishing the standard.

20He submitted that the Member’s conduct was less blameworthy than the conduct in Sadaka (reprimand only) which occurred over a two-year period and involved sharing, liking and commenting on anti-Muslim and anti-refugee content. Additionally, Ms. Sadaka identified herself on her personal Facebook page as a principal and named her school and board while the Member’s Twitter account referred to him only as LucasMcDonald14. As a principal, Ms. Sadaka served as a greater role model than a teacher, yet she was not suspended by her board. Ms. Sadaka pled guilty to multiple counts of misconduct, including a failure to maintain the standards of the profession, while the Member pled guilty to only two. He submitted that the same mitigating factors apply to the Member as applied to Ms. Sadaka in that both moved quickly to delete their accounts without being asked, cooperated with the disciplinary investigation and were subject to public scrutiny that took a toll both personally and professionally.

21Member’s Counsel presented three additional cases to the Panel in support of his submissions: Ontario College of Teachers v. Kalarus, 2017 ONOCT 17; Ontario College of Teachers v. Gordon, 2015 ONOCT 31 and Ontario College of Teachers v. Lewer, 2012 ONOCT 22. In Kalarus, the member made an offensive comment about a colleague to another colleague and an offensive comment to a student. He was ordered to receive a reprimand. In Gordon, the member made a number of offensive comments to students, made a negative comment about the vice-principal in the presence of students and showed his class inappropriate videos in which racial slurs and other offensive language were used. He was ordered to receive a reprimand and take courses on boundary violations and sensitivity training. In Lewer, the member physically assaulted a student and harassed a colleague. He was ordered to receive a reprimand and take courses on boundary violations and anger management. Member’s Counsel submitted that the misconduct in Gordon and Lewer was “miles apart” from what the Member acknowledged in his guilty plea. He recognized that, in accordance with Ross, the Discipline Committee is entitled to sanction a member’s misconduct in his private life but maintained that a reprimand alone was an appropriate and proportionate sanction as the Member’s conduct fell at the de minimis end of the range and was significantly less egregious than the conduct described in the College’s decisions where a more severe penalty was ordered.

H. REPLY SUBMISSIONS OF COLLEGE COUNSEL

22College Counsel disputed the characterization of the Member’s conduct as involving a small number of re-tweets and pointed out that Tab “B” to Exhibit 2 contained more than 20 examples. He also argued that the Member’s description of his activity as engagement in political discourse was relevant to the finding of misconduct only, to which the Member pled guilty, and not penalty.

I. PENALTY DECISION

23On October 10, 2019, the Panel made the following order as to penalty:

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

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

(a) within 120 days of the date of the Decision, Reasons for Decision and Order of the Panel, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate communications and sensitivity training, subject to the following conditions;

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

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

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

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

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course;

3. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of ten consecutive instructional days commencing on the 15th day following the date of the Panel’s Decision, Reasons for Decision and Order, and the fact of the suspension shall be recorded on the Register.

J. REASONS FOR PENALTY DECISION

24The Panel carefully considered the submissions of the parties with respect to penalty and reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member. The penalty is also within a reasonable range, based on the cases presented by the parties. The Panel agrees with the parties that the Fromm case is relevant for the principle that the College has jurisdiction to sanction “a teacher who publicly expresses views which are contrary to the values of the profession and the education system” (para. 108) outside the classroom but that the Member’s conduct was not comparable to Mr. Fromm’s lengthy association with known racists and his repeated expression of racist views in public forums despite numerous written reprimands from his employer.

25The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the objectionable nature of the retweets (which the Member admitted he would not have felt comfortable discussing in a classroom with students) and the impact to the School community. Both of these factors are noted in the Board’s July 18, 2017 letter at Exhibit “D” to the Agreed Statement of Facts and Guilty Plea. In terms of mitigating factors, the Member pled guilty to two counts of misconduct, reducing the time and expense of a contested hearing, promptly deactivated his Twitter account after learning of the parental complaint, was the object of media attention and has not been the subject of discipline proceedings in the past.

26The Panel finds that the Member’s conduct warrants a reprimand by his peers. The College published an advisory in 2011 warning members to maintain professional boundaries in all forms of technology-related communication and referencing the Supreme Court’s ruling in Ross that teachers’ off-duty conduct is relevant to their suitability to teach. The retweets contained offensive content which the Member recognized he would not have felt appropriate to share with students. However, as College Counsel submitted, by retweeting these comments the Member shared them with “the world at large” and implicitly communicated his agreement with the expressed views. The Panel agrees with this submission. 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.

27The Panel finds that the course of instruction regarding appropriate communications and sensitivity training will assist in the rehabilitation of the Member and help him gain further insight. 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.

28The Panel carefully considered the issue of a suspension in light of the parties’ vigorous submissions on this point and concluded that a 10-day suspension, to be served during consecutive instructional days, was reasonable and appropriate. The Sadaka case proceeded by way of a joint submission on penalty which makes it distinguishable from the present case. In the event of a joint submission on penalty, once the panel 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. Nevertheless, the Sadaka panel was “deeply concerned” (p. 15) about the appropriateness of ordering only a reprimand and requested additional submissions from the parties before ultimately accepting the joint submission. The panel noted the following significant mitigating factors: (1) Ms. Sadaka voluntarily took a nine-hour equity course (which College Counsel candidly acknowledged was beyond the coursework that would have been imposed via the penalty process) prior to the College’s hearing and provided the panel with the course provider’s evaluation of her progress, and (2) Ms. Sadaka was removed from her leadership position as principal for over two years with “devastating” (p. 17) personal effect. Neither mitigating factor is applicable to the Member in the present case. Although the Sadaka panel accepted the imposition of a reprimand as the sole penalty, they took pains to note (pp. 21-22):

“We emphasize that a reprimand alone would not ordinarily be the appropriate penalty in a case involving misconduct of the nature at issue here in the absence of significant mitigating factors. In other cases, we would expect that coursework, at a minimum, would be imposed in addition to a reprimand. Had the Member’s case not presented with the significant mitigating factors that it did, the Committee would have been inclined to order a suspension of the Member’s Certificate of Qualification and Registration.”

29While the Panel finds that a suspension is necessary to denunciate the Member’s conduct and preserve public confidence in the College’s regulation of the profession, the Member’s misconduct was less egregious than the misconduct described in the Ubertelli (one-month suspension) case. Mr. Ubertelli’s misconduct involved both offensive blog and website comments outside the classroom as well as homophobic comments to a student and the principal. There is no evidence the Member ever expressed any offensive views to a student or colleague at the School. Additionally, Mr. Ubertelli pled guilty to breaches of six sections of Ontario Regulation 437/97 while the Member pled guilty to breaches of two sections only.

30The dispositions in Kalarus (reprimand only), Gordon (reprimand and coursework) and Lewer (reprimand and coursework) resulted from the acceptance of a joint submission on penalty and accordingly involved the high level of deference described above in relation to the Sadaka decision.

31In all the circumstances, a 10-day suspension to be served during consecutive instructional days is an appropriate and proportional penalty. The suspension will serve as a specific deterrent to the Member and should reinforce for him that the College does not tolerate the type of conduct in which he engaged. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

32The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.
4. 4R. v. Audet 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171; Ross v. New Brunswick School District No. 15 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825; and Toronto (City) Board of Education v. OSSTF 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487.