Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Chong Yen 2019 ONOCT 28

Date: 2019-04-23

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

Matthew Francis Chong Yen, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MATTHEW FRANCIS CHONG YEN (REGISTRATION #278008)

PANEL: Diane Ballantyne, OCT, Chair Shanlee Linton, OCT Bill Petrie

HEARD: December 12-13, 2018

Christine Lonsdale of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

No one appearing for Matthew Francis Chong Yen

Julie Maciura of Steinecke Maciura LeBlanc, Independent Legal Counsel

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

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 12, 2018, at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated August 23, 2018 was served on Matthew Francis Chong Yen (the “Member”) inviting him to participate in the hearing and specifying the allegations. The hearing was subsequently set for December 12, 2018 and continued on December 13, 2018.

The Member did not attend the hearing and did not have legal representation.

Counsel for the College filed the Affidavit of Amy Leung (Exhibit 2) sworn on September 19, 2018 and the Affidavit of Amy Leung (Exhibit 3), sworn on December 11, 2018, to demonstrate 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 these affidavits, Ms. Leung, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. On December 4, 2018, the Member advised College Counsel that he would not be attending the scheduled hearing.

Based on these affidavits, the Committee 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 Member did not appear. The Committee therefore heard this matter in the absence of the Member.

PUBLICATION BAN

The College sought and the Committee ordered a publication ban pursuant to section 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”). 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.

OVERVIEW

During the 2016-2017 academic year, the Member allegedly made inappropriate comments to students and behaved inappropriately in class.

The Committee’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 Committee found that the Member engaged in professional misconduct as set out below. In particular, the Member breached subsections 1(5), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Committee did not find that the Member breached subsections 1(7), 1(7.2), or 1(14) of Ontario Regulation 437/97, which were also alleged.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Matthew Francis Chong Yen 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 comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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); and

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Matthew Francis Chong Yen is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a [XXX] teacher at [XXX] Institute (the “School”), in Scarborough, Ontario.

3. During the 2016-2017 academic year, the Member made inappropriate comments to students, including, but not limited to:

(a) “Do you have a vagina?”;

(b) “When did you grow a vagina?”;

(c) “You cannot answer because you do not have a vagina”;

(d) “Unless you have a vagina you should not be speaking right now”;

(e) “Don’t worry about not answering the question, you are not going to pass the course anyway”;

(f) “Only five of you are going to pass this class”; and

(g) responded to a question on the topic of [XXX] with “Yes, that was what your mother said last night.”

4. During the 2016-2017 academic year, the Member:

(a) yelled at a student and/or students;

(b) stomped his feet; and

(c) banged his fist on a desk.

THE MEMBER’S PLEA

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

THE EVIDENCE

The College presented oral and documentary evidence in order to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Committee’s reasons for decision below. The following is a brief summary of the College’s evidence.

The College called three witnesses: George Mavraganis (“Mr. Mavraganis”), the principal of the School; Sharon Ramlochan (“Ms. Ramlochan”), a vice-principal at the school; and Kym Stadnyk (“Ms. Stadnyk”), another vice-principal at the school. The College also filed a document brief. Most of the documents in the document brief were marked as exhibits over the course of the hearing.

As the Member chose not to participate in the hearing, no evidence was presented in his defence.

Mr. Mavraganis’ Testimony

Mr. Mavraganis testified that he was the principal at the School from September 2007 to January 2017, when he retired. Prior to becoming a principal, he was a vice-principal for four years. He started his teaching career in the 1980’s. The School had about 1200 students, two thirds of whom specialized in the School’s [XXX] program. In 2016-2017, the School had two vice-principals, Ms. Ramlochan and Ms. Stadnyk.

Mr. Mavraganis testified that he received several complaints about the Member from parents and students. He investigated these complaints by interviewing those involved, including the Member, and by consulting with David Moore (“Mr. Moore”), an employee of the Board assigned to managing teacher behaviour, and Peter Chang (“Mr. Chang”), a Board superintendent. The complaints generally involved the Member’s use of inappropriate language (sometimes directed at students) and his inappropriate behaviour, as set out in the Notice of Hearing. According to Mr. Mavraganis, the Member’s conduct formed part of a concerning pattern of behaviour. The Member had received a letter of discipline from the Board on January 27, 2017, which: outlined the Board’s factual findings from the investigation into his misconduct; concluded that his conduct was “inappropriate and unprofessional”; and, informed the Member of his five-day suspension (Exhibit 10).

Participant Expert

College Counsel sought to qualify Mr. Mavraganis as a participant expert in the area of classroom management and the standards of the profession. The Committee granted this request for the following reasons.

The College demonstrated that the four threshold requirements for the admissibility of expert evidence have been met, as established the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.

First, the Committee finds that Mr. Mavraganis’ evidence is relevant to the issue of whether or not the Member’s classroom management met the standards of the profession. The principal supervised the Member and investigated his conduct.

Second, Mr. Mavraganis’ evidence is necessary because the Committee must receive expert evidence regarding the standards of the profession in cases such as this, where the Member’s conduct is not so egregious that it is self-evidently misconduct. By way of contrast, expert evidence is not required in cases involving the physical or sexual abuse of students, which are clear examples of professional misconduct (see Novick v. Ontario College of Teachers, 2016 ONSC 508 at para. 71).

Third, there is no exclusionary rule preventing the admissibility of Mr. Mavraganis’ expert evidence.

Fourth, the Committee finds that Mr. Mavraganis is a properly qualified expert, given his extensive experience as an educator and an administrator.

The College further demonstrated that Mr. Mavraganis meets the criteria established by the Ontario Court of Appeal for serving as a “participant expert.” In Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), the Court defines participant experts as those who “form opinions based on their participation in the underlying events […] rather than because they were engaged by a party to the litigation to form an opinion” (Westerhof at paragraph 6). The Court goes on to explain, at paragraph 60, that:

a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents […] where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

The Committee finds that Mr. Mavraganis meets these criteria. He has special skill, knowledge, training, or experience in the area of classroom management and the standards of the profession. In addition, he testified that he had the opportunity to observe the Member’s teaching performance and that he formed his opinion while observing the Member’s teaching performance and competencies as part of the ordinary exercise of his duties as principal. Moreover, it has become a common practice for panels of the Discipline Committee to qualify witnesses as participant experts, where appropriate.¹ Accordingly, the Committee qualified Mr. Mavraganis as a participant expert in the area of classroom management and the standards of the teaching profession.

Ms. Ramlochan’s Testimony

Ms. Ramlochan was one of the Member’s vice-principals at the School at the material times. She is an experienced educator who taught for 14 years prior to being a vice-principal. She has served as a vice-principal for seven years at two different schools. Ms. Ramlochan started at the School as vice-principal in January 2016.

Ms. Ramlochan testified about the several complaints made against the Member from parents and students. She testified in detail about her interactions with the Member and her extensive involvement in the investigation of the complaints.

Participant Expert

For similar reasons to those set out above with respect to Mr. Mavraganis, the Committee granted the College’s request to qualify Ms. Ramlochan as a participant expert in the area of classroom management and the standards of the profession. Ms. Ramlochan’s evidence was relevant and necessary, there was no exclusionary rule preventing the admissibility of her expert evidence, and she was a properly qualified expert given her experience as an educator and an administrator. Ms. Ramlochan has special skill, knowledge, training, or experience in the area of classroom management, she had the opportunity to observe the Member’s teaching performance, and she formed opinions about the Member’s classroom management as part of the ordinary exercise of her duties as vice-principal.

Ms. Stadnyk’s Testimony

Ms. Stadnyk was one of the Member’s vice-principals at the School at the material times. She is an experienced educator and started teaching in 1995. She served as a vice-principal at several schools, including at the Member’s School from 2011 until 2017.

Ms. Stadnyk testified about the complaints she received about the Member. She also testified about her interactions with the Member and her involvement in the investigation of certain complaints.

Participant Expert

For similar reasons to those set out above with respect to Mr. Mavraganis, the Committee granted the College’s request to qualify Ms. Stadnyk as a participant expert in the area of classroom management and the standards of the profession. Ms. Stadnyk’s evidence was relevant and necessary, there was no exclusionary rule preventing the admissibility of her expert evidence, and she was a properly qualified expert given her experience as an educator and an administrator. Ms. Stadnyk has special skill, knowledge, training, or experience in the area of classroom management and standards of the profession, she had the opportunity to observe the Member’s teaching performance, and she formed opinions about the Member’s classroom management as part of the ordinary exercise of her duties as vice-principal.

SUBMISSIONS OF COLLEGE COUNSEL

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

College Counsel reviewed the relevant evidence in detail with the Committee and submitted that the three College witnesses were credible. She submitted that while the three administrators were involved with different aspects of the complaints against the Member, their evidence as a whole was consistent, coherent, and clear. College Counsel submitted that there was a robust process that was followed by the administrators when each concern was raised; namely, that a number of students were interviewed on more than one occasion, and that very detailed contemporaneous notes were taken by the witnesses during these student interviews. Further, College Counsel submitted that the students were asked opened-ended questions and, while not every student confirmed the allegations, many students did.

College Counsel submitted that the evidence presented established that the Member breached each head of misconduct, as alleged in the Notice of Hearing. With respect to subsection 1(14) of Ontario Regulation 437/97, College Counsel submitted that if the Committee were to find that the Member breached subsection 1(5), it should not also find that there was a breach of subsection 1(14) because that would be duplicative. College Counsel submitted that the alleged breach of subsection 1(14) of Ontario Regulation 437/97 relates to section 32 of the College’s bylaws, in particular, which sets out the standards of the profession. According to College Counsel, because subsection 1(5) and 1(14) of Ontario Regulation 437/97 both relate to a breach of the standards of the profession a finding should only be made in relation to one of those two subsections.

DECISION ON FINDING

Onus and standard of proof

The 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, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Committee rendered an oral decision on December 13, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

The Committee did not find that the College proved that the Member’s conduct constituted misconduct pursuant to subsections 1(7), 1(7.2) or 1(14) of Ontario Regulation 437/97.

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Committee 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.

Factual Findings

1) During 2016-2017 academic year, the Member made a number of inappropriate comments to students

The Committee received ample, uncontradicted evidence from each of the College’s witnesses which proved, on a balance of probabilities, that the Member engaged in the behaviour alleged at paragraph 3 of the Notice of Hearing. In particular, the Committee finds that the Member made the following inappropriate comments to students as alleged at paragraphs 3(a)-(g) of the Notice of Hearing:

(a) “Do you have a vagina?”

(b) “When did you grow a vagina?”

(c) “You cannot answer because you do not have a vagina”

(d) “Unless you have a vagina you should not be speaking right now”

(e) “Don’t worry about not answering the question, you are not going to pass the course anyway”

(f) “Only five of you are going to pass this class”

(g) “Yes, that was what your mother said last night,” in response to a question about the topic of [XXX].

The Committee received credible evidence from the three College witnesses with respect to the inappropriate comments alleged at paragraph 3 of the Notice of Hearing.

The “vagina comments” (paragraphs 3(a)-(d))

The Evidence

Mr. Mavraganis testified that on October 11, 2016 he and Ms. Ramlochan interviewed several students regarding the Members’ conduct during class. With respect to the “vagina comments”, Mr. Mavraganis testified that a few students reported that the Member made the following comments during class: “do you have a vagina?”; “unless you have a vagina you should not be speaking right now”; “you cannot answer because you do not have a vagina” (see his interview notes at Exhibit 6). Ms. Ramlochan’s testimony was consistent with Mr. Mavraganis. Namely, that students reported that the Member made the following comments during class: “do you have a vagina?”; “unless you have a vagina you should not be speaking right now”; “you cannot answer because you do not have a vagina” (see her interview notes at Exhibit 13). Furthermore, Ms. Stadnyk testified that on October 18, 2016, a student reported to her that the Member said “when did you grow a vagina?” and that this was not the first time a “vagina comment” occurred (see her notes at Exhibit 18).

Mr. Mavraganis testified that he consulted with Mr. Moore, an employee of the Board assigned to managing teacher behaviour, and Mr. Chang, a Board superintendent, regarding the results of the student interviews (see the email, dated October 13, 2016, at Exhibit 5). Mr. Moore advised Mr. Mavraganis that a “response meeting” with the Member was warranted (Exhibit 5). Mr. Mavraganis testified that on October 24, 2016 he interviewed the Member to get his response to the allegations against him. When asked about the “vagina comments”, the Member responded: “Yes, I did say that but there is context” (Exhibit 15). The Member said he used the word “vagina” once; he said, “I acknowledge saying the word vagina to defend a female student. It was the right intention but I should not have said it” (Exhibit 15).

Credibility and Conclusion

The Committee accepts the witnesses’ evidence over the Member’s version of events. Although the evidence regarding the students’ reports on the “vagina comments” are hearsay (because those students did not testify), the Committee notes that hearsay evidence is admissible in discipline hearings and finds this hearsay evidence to be reliable. Mr. Mavraganis conducted a fulsome investigation into the Member’s use of inappropriate language. He interviewed students separately, he made contemporaneous notes, he did not ask leading questions during his interviews, and he raised the issues with the Member and received the Member’s response (Exhibit 15). Mr. Mavraganis determined that the concerns regarding the Member’s use of inappropriate language were substantiated and formally disciplined the Member by suspending him for five days without pay following his investigation (Exhibit 10).

All three of the College’s witnesses testified in a fair and balanced way and did not overstate their evidence. The Committee finds that their evidence was credible. Their oral evidence was externally consistent with one another, and internally consistent with their contemporaneous notes taken during their interviews with students (Exhibit 6, Exhibit 13, and Exhibit 18, respectively).

Moreover, according to Mr. Mavraganis, the Member admitted to using the word “vagina” in relation to one female student, but he qualified this admission by stating that he did so in order to defend the female student (Exhibit 15).

The Committee finds it more likely than not that the Member made the “vagina comments”, as alleged at paragraph 3(a)-(d) of the Notice of Hearing.

The “not passing the course comments” (paragraphs 3(e) and (f))

The Evidence

Mr. Mavraganis testified that on October 11, 2016 he and Ms. Ramlochan interviewed several students regarding the Members’ conduct during class. With respect to the “not passing the course comments”, Mr. Mavraganis testified that students reported that the Member singled out students who were not passing his class and said “don’t worry about it, you’re not going to pass anyways” and “only five of you will pass this class” (see his interview notes at Exhibit 6). Ms. Ramlochan’s testimony was consistent with Mr. Mavraganis’ evidence; namely, that a student reported that the Member said “don’t worry you’re not going to pass anyways” (Exhibit 13).

Mr. Mavraganis testified that he consulted with Mr. Moore, as well as Mr. Chang, regarding the results of the student interviews (see the email dated October 13, 2016, at Exhibit 5). Mr. Moore advised Mr. Mavraganis that a “response meeting” with the Member was warranted (Exhibit 5). Mr. Mavraganis testified that on October 24, 2016 he interviewed the Member to get his response to the allegations against him regarding the “not passing the course comments”. Mr. Mavraganis asked the Member if he made the following comments to students: “you are not going to pass”; “only five of you will pass this class”; and “don’t worry about answering a question, you are not going to pass the course anyways” (Exhibit 15). The Member denied making any comments to that effect (Exhibit 15).

Credibility and Conclusion

The Committee accepts the witnesses’ evidence over the Member’s version of events. Although the evidence regarding the students’ reports on the “not passing the course comments” is hearsay (because those students did not testify), the Committee notes that hearsay evidence is admissible in discipline hearings and finds this hearsay evidence to be reliable. As noted above, Mr. Mavraganis conducted a fulsome investigation into the Member’s use of inappropriate language. He interviewed students separately, he made contemporaneous notes, he did not ask leading questions during his interviews, and he raised the issues with the Member and received the Member’s response (Exhibit 15). Mr. Mavraganis determined that the concerns regarding the Member’s use of inappropriate language were substantiated and formally disciplined the Member by suspending him for five days without pay following his investigation (Exhibit 10).

Furthermore, the Committee finds Mr. Mavraganis’ and Ms. Ramlochan’s evidence credible because they were fair and balanced in their testimony and they did not overstate their evidence. Their oral evidence was externally consistent with one another, and internally consistent with their contemporaneous notes taken during their interviews with students (Exhibit 6, Exhibit 13, respectively).

Therefore, the Committee finds it more likely than not that the Member made the “not passing the course comments”, as alleged at paragraph 3(e) and (f) of the Notice of Hearing.

The “that’s what your mother said comment” (paragraph 3(g))

Evidence

Ms. Stadnyk testified that a letter, dated October 18, 2016, came across her desk where a student in the Member’s Grade [XXX] [XXX] class reported the Member for making an inappropriate comment (Exhibit 14). During a [XXX] discussion on [XXX], a student asked the Member [XXX] and the Member responded, “that’s what your mom said last night” (Exhibit 14). Ms. Stadnyk testified that she did not know who wrote this letter, but that it led her to interview students in the Member’s class. Ms. Stadnyk testified that, during her student interviews, a student in the Member’s class confirmed that the Member said, “that’s what your mom said to me last night” (Exhibit 18).

Mr. Mavraganis testified that on October 24, 2016 he interviewed the Member to get his response to the allegations against him with respect to the “that’s what your mother said comment”. When asked about “that what’s your mother said comment”, the Member denied making that comment (Exhibit 15). The Member said, “No, during a [XXX] if you substitute a [XXX] in, it will [XXX] and will be pulled a certain way” (Exhibit 15).

Credibility and Conclusion

The Committee accepts the witnesses’ evidence over the Member’s version of events. Although the evidence regarding the students’ reports on the “that’s what your mother said comment” is hearsay (because those students did not testify), the Committee notes that hearsay evidence is admissible in discipline hearings and finds this hearsay evidence to be reliable. The Committee recognizes that the author of the letter dated October 18, 2016 is unknown (Exhibit 14). However, on the basis of this letter, Ms. Stadnyk conducted an investigation into the Member’s comment. She interviewed students separately and made contemporaneous notes, which confirmed that the Member responded to a student’s question by saying, “that’s what your mom said to me last night” (Exhibit 18).

Furthermore, after Mr. Mavraganis’ fulsome investigation into the Member’s use of inappropriate language, he determined that the concerns regarding the Member’s use of inappropriate language were substantiated and he formally disciplined the Member by suspending him for five days without pay following his investigation (Exhibit 10).

Moreover, Ms. Stadnyk’s evidence was credible because she was fair and balanced in her testimony. Her oral evidence was externally consistent with the anonymous student’s letter (Exhibit 14), and internally consistent with her contemporaneous notes taken during her interviews with students (Exhibit 18).

Therefore, the Committee finds it more likely than not that the Member made the “that’s what your mom said comment”, as alleged at paragraph 3(g) of the Notice of Hearing.

2) During the 2016-2017 academic year, the Member yelled at students, stomped his feet and banged his fist on a desk

The Committee received ample, uncontradicted evidence from each of the College’s witnesses which proved, on a balance of probabilities, that the Member engaged in the conduct alleged at paragraph 4 of the Notice of Hearing.

Mr. Mavraganis testified that on October 11, 2016, he and Ms. Ramlochan interviewed several students regarding the Members’ conduct during class. Mr. Mavraganis testified that students reported that the Member yelled at students, would bang his hands on the desk, and would stomp his feet (see his interview notes at Exhibit 6). Ms. Ramlochan’s testimony was consistent with Mr. Mavraganis’ evidence; namely, she testified that students reported that the Member yelled, stomped his feet, and banged his hands on the desk (Exhibit 13). Ms. Ramlochan’s interview notes of the students state, “If someone asks a question, [the Member] starts yelling, stomps his feet, [and] speaks in a harsh tone” and, “he bangs on the desk when he is mad” (Exhibit 13).

Mr. Mavraganis testified that he consulted with Mr. Moore, as well as Mr. Chang, regarding the results of the student interviews (see the email dated October 13, 2016, at Exhibit 5). Mr. Moore advised Mr. Mavraganis that a “response meeting” with the Member was warranted (Exhibit 5). Mr. Mavraganis testified that on October 24, 2016 he interviewed the Member to get his response to the allegations that he yells, stomps his feet, and bangs on the desk in class (Exhibit 15). The Member denied banging his fist on the desk and stomping his feet, but admitted to raising his voice (Exhibit 15).

Credibility and Conclusion

The Committee accepts the witnesses’ evidence. Although the evidence regarding the students’ reports is hearsay (because those students did not testify), the Committee notes that hearsay evidence is admissible in discipline hearings and finds this hearsay evidence to be reliable. Mr. Mavraganis conducted a fulsome investigation into the Member’s inappropriate behaviour in the classroom. He interviewed students separately, he made contemporaneous notes, he did not ask leading questions during his interviews, and he raised the issues with the Member and received the Member’s response (Exhibit 15). Mr. Mavraganis determined that the concerns regarding the Member’s yelling, stomping his feet, and banging his fist on a desk, were substantiated and formally disciplined the Member by suspending him for five days without pay following his investigation (Exhibit 10).

Furthermore, the Committee finds Mr. Mavraganis’ and Ms. Ramlochan’s evidence credible because they were fair and balanced in their testimony and they did not overstate their evidence. Their oral evidence was externally consistent with one another, and internally consistent with their contemporaneous notes taken during their interviews with students (Exhibit 6, and Exhibit 13, respectively).

Moreover, according to Mr. Mavraganis, the Member admitted to raising his voice. During the response meeting the Member denied stomping his feet and banging his fist on a desk, but admitted “I have raised[ed] my voice” (Exhibit 15).

Therefore, the Committee finds it more likely than not that the Member yelled at students, stomped his feet, and banged his fist on the desk, as alleged at paragraph 4 of the Notice of Hearing.

Legal Conclusions

The Member did engage in professional misconduct

The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

However, the Committee finds that the College did not prove that the Member verbally and psychologically or emotionally abused students, contrary to subsections 1(7) and 1(7.2) of Ontario Regulation 437/97 for the reasons set out below. Further, the Committee makes no finding under subsection 1(14) of Ontario Regulation 437/97.

1) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

The Committee finds that the Member failed to maintain the standards of the profession. In making this determination, the Committee relied on the expert opinion of the three College witnesses, who were qualified as participant experts in the area of classroom management and the standards of the profession. The Committee was presented with The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession (Exhibit 11) and received clear and cogent testimony from the College’s three participant experts regarding the Member’s breach of these standards.

Specifically, based on the expert opinions of the three College witnesses, the Committee found that the Member failed to meet the standards of the profession when he made the “vagina comments”, the “not passing the course comments”, and the “that’s what your mother said comment”. Mr. Mavraganis testified that the Member fell short of meeting the standards of the profession as his conduct “compromised the trust and respect that parents have in terms of expectations of him as a teacher and his ability to teach students.”

Ms. Ramlochan testified that the Member breached the “professional practice” standard (one of the Standards of Practice for the Teaching Profession) because the comments he made were unprofessional and inappropriate. Further, Ms. Ramlochan testified that the Member breached all four Ethical Standards for the Teaching Profession. Ms. Ramlochan testified that the Member breached the ethical standard of care, as “parents give their children to us expecting that we’ll be positive influences on their lives and have empathy for [their] children…the comments [the Member] made … doesn’t demonstrate positive empathy to me.” In terms of the ethical standard of trust, Ms. Ramlochan testified that “the tone that’s used in the classroom is very inappropriate” and that students felt demoralized because of the Member’s conduct. Further, Ms. Ramlochan testified that the Member’s conduct breached the ethical standard of respect as the comments demonstrated a lack of respect for students and their cultural values. Moreover, with respect to the ethical standard of integrity, Ms. Ramlochan testified that the Member failed to show integrity in the way he addressed students, especially given the fact that students are young and therefore vulnerable and impressionable.

Ms. Stadnyk testified that the “vagina comments” and “that’s what your mother said comment” violated the Standards of Practice and the Ethical Standards for the Teaching Profession. Specifically, the comments violated the Standards of Practice for the Teaching Profession as they were “highly inappropriate” and “very derogatory”.

Further, Ms. Stadnyk testified that the Member’s conduct also violated the Ethical Standards for the Teaching Profession. The Member violated the ethical standard of respect as his conduct demonstrated “a lack of respect for the students, whether it’s directed at a particular student or not”. The Member also violated the ethical standard of trust because his conduct undermined the foundation of the trusting relationship of teacher and student. Moreover, the “vagina comments” demonstrated a lack of integrity on the Member’s part, as “there’s no teachable moment in this, it’s not a health class, it’s a [XXX] class.” Finally, the Member violated the ethical standard of care when he made the comments. Ms. Stadnyk testified that “[the Member] is not modeling what an adult educator or professional should represent to the class.”

The Committee accepts the uncontradicted expert opinion evidence of Mr. Mavraganis, Ms. Ramlochan, and Ms. Stadnyk and finds that the Member failed to maintain the Ethical Standards and Standards of Practice for the Teaching Profession.

2) The College did not establish that the Member abused a student or students verbally, psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7) and 1(7.2)

While the Committee finds that the Member’s conduct was inappropriate on several occasions, it did not find that the Member’s conduct amounted to “abuse”. College Counsel provided the Committee with a Document Brief that included a definition of abuse and case law with respect to what type of conduct has been found to constitute verbal, psychological or emotional abuse in past cases before the Discipline Committee. However, the Committee finds that while the Member’s comments were completely unprofessional and inappropriate, the Member’s misconduct does not amount to verbal abuse because the evidence did not establish that the comments “cause[d] or threaten[ed] to cause lasting harm to a child.” Further, the Committee finds that Member’s misconduct does not amount to psychological abuse because the evidence did not establish that his conduct “cause[d] or [could possibly] cause serious emotional injury.”

3) The Committee makes no finding relating to the allegation that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)

College Counsel submitted that if the Committee finds that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5), the Committee should not also find that he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). According to College Counsel, subsection 1(5) and 1(14) of Ontario Regulation 437/97 both relate to a breach of the standards of the profession. College Counsel submitted that a finding under both heads of misconduct would therefore be duplicative. Given that the College was not seeking findings under both heads of misconduct and that a finding was made under subsection 1(5), the Committee makes no finding as it relates to subsection 1(14) of Ontario Regulation 437/97.

4) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)

The Committee finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(b) of the Education Act provides that it is the duty of a teacher to, “encourage pupils in the pursuit of learning.” The Member failed to do so when he made the “vagina comments”, the “not passing the course comments”, the “that’s what your mother said comment”, and when he yelled at students, stomped his feet and banged his fist on a desk. It is unacceptable for teachers to direct this type of discouraging and demeaning behaviour towards students. Teachers are expected to act as positive role models for students. By using inappropriate language on several occasion, and by modeling inappropriate behaviour the Member acted as a poor role model.

5) The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18)

The Committee finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. It was disgraceful and dishonourable for the Member to make the “vagina comments” in class and to say to a student “that’s what your mother said last night”. It was unprofessional for the Member to demean students by making various comments about them not passing the course. It was also unprofessional for the Member to yell at students, stomp his feet and bang his fist on the desk. Members of the profession are expected to act professionally, to maintain their composure, and to treat students with respect. The Member failed to meet these expectations.

6) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

The Committee finds that the Member engaged in conduct unbecoming a member of the teaching profession through his series of inappropriate comments and behaviours. Using inappropriate language in the classroom, demeaning students, and modeling rude and inappropriate behaviour undermines the reputation of the teaching profession and jeopardizes the trust that parents, students and the public place in teachers. It reflects poorly on the profession as a whole when members engage in the type of behaviour that was found to have occurred in this case.

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel explained that the Committee has the discretion to order a penalty that it considers appropriate in the circumstances, but submitted that the College was seeking a penalty that includes the following elements:

1. a reprimand;
2. a suspension in the range of three to six months; and
3. the imposition of terms, conditions or limitations that include the requirement that the Member successfully complete coursework regarding classroom management, anger management, and the maintenance of professional boundaries.

College Counsel submitted that the reprimand and coursework components of the proposed penalty were not controversial. In terms of the proposed classroom management course, College Counsel submitted that since the panel ordered that the Member take the same course in the Member’s first matter before the panel (see Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56 (“Chong Yen #1”), it may not be necessary to order a second classroom management course. College Counsel suggested that a copy of the Decision, Reasons for Decision and Order from this matter be given to the course provider to ensure that the single course will be structured to satisfy the concerns from both hearings.

With respect to the appropriate duration of the suspension, College Counsel presented the Committee with five recent decisions of the Discipline Committee in which suspensions of up to six months had been ordered: Ontario College of Teachers v. Chéry, 2016 ONOCT 73 (“Chéry”); Ontario College of Teachers v. Lowrie, 2015 ONOCT 53 (“Lowrie”); Ontario College of Teachers v. Manga, 2017 ONOCT 48 (“Manga”); Ontario College of Teachers v. Law, 2016 ONOCT 32 (“Law”); and Ontario College of Teachers v. Williams, 2016 ONOCT 55 (“Williams”). College Counsel reviewed these decisions with the Committee and submitted that a suspension in the range of three to six months would be appropriate given the circumstances in the Member’s case.

College Counsel further submitted that the Committee ought to consider the following aggravating and mitigating factors when determining the appropriate penalty in this case. The aggravating factors include the following:

1. this is the Member’s second finding before the Discipline Committee;

2. there was a variety of unprofessional behaviour that included inappropriate comments and gestures;

3. school administration advised the Member to correct his behaviour on several occasions, but the Member’s behaviour did not improve; and

4. the Member was uncooperative and did not participate in the College’s discipline process.

The mitigating factors include the following:

1. there was no bad intention behind the “vagina comments”, rather the Member intended to give space for women to answer questions in the classroom.

PENALTY DECISION

On December 13, 2018, the Committee made the following order as to penalty:

1. The Member is directed to appear before the Committee within 90 days of the date of the Committee’s 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 suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the date of the 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 commencing 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, courses of instruction pre-approved by the Registrar regarding anger management, and professional boundaries with a focus on sensitivity towards students, subject to the following conditions:

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

(ii) upon review of the Decision, Reasons for Decision and Order, 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;

REASONS FOR PENALTY

In arriving at its decision with respect to penalty, the Committee carefully considered the College’s evidence and submissions. The Committee was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation, and public protection. The Committee also recognizes the principle that like cases should be treated alike. The penalty in this case falls with the range of penalties ordered in similar cases before the Discipline Committee, as presented by College Counsel.

The Committee assessed the aggravating and mitigating factors in the Member’s case. The fact that the Member had no bad intention behind the “vagina comments” is a mitigating factor in this case.

However, there were a number of aggravating factors in this case. First, this is the Member’s second finding from the Discipline Committee for similar misconduct. Second, the Member’s misconduct included a variety of inappropriate and unprofessional behaviour that, despite intervention from the School’s administration, did not improve. Third, the Member did not participate in the discipline process. The College made numerous attempts to contact the Member between December 17, 2017 and November 28, 2018 (see Exhibits 2 and 3). On December 4, 2018, the Member emailed College Counsel to say that he was not attending (see Exhibit 3 Tab H).

The Committee recognizes that the Member was not required to admit his misconduct and that the absence of an admission is not an aggravating factor. The Committee nevertheless finds that the Member’s complete lack of participation in the discipline process (regardless of whether or not he was willing to admit his professional misconduct) for a second time is a significant aggravating factor.

Reprimand

The Committee finds that the Member’s repeated unprofessional conduct warrants a reprimand by his peers. On a number of occasions during the 2016-2017 academic year, the Member made inappropriate comments and behaved in an offensive or unprofessional manner. Among other things, he belittled students by saying “don’t worry about not answering the question, you are not going to pass the course anyway”; he yelled, banged his fist on the desk, and stomped his feet; he referred to inappropriate subject matters in class, including asking of students who wanted to answer a question “do you have a vagina?” and responding to a question with “yes, that was what your mother said last night” when the nature of the question made it obvious that his answer was implying something sexual. This type of behaviour has no place in an educational setting. Members of the profession are expected to behave as positive role models for students and to provide them with a safe and supportive learning environment. The Member did the opposite. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

Suspension

Having carefully reviewed the case law presented by College Counsel, the Committee finds that a three month suspension is reasonable in this case. The duration of the suspension is within an appropriate range as established by previous cases before the Discipline Committee, and it is proportionate to the Member’s misconduct.

In Chéry, a six-month suspension was ordered but Mr. Chéry was found to have verbally, physically and psychologically or emotionally abused numerous students in seven different classes. The Member’s misconduct was not nearly as severe as Mr. Chéry’s misconduct and a similar suspension is therefore not appropriate.

In Lowrie, a six-month suspension was ordered but, in addition to making demeaning or inappropriate comments to students, Mr. Lowrie’s behaviour included insubordination and threats to his principal. The Member’s misconduct was not as serious as Mr. Lowrie’s inappropriate, insubordinate, and threatening behaviour and a similar suspension is therefore not appropriate.

In Manga, a four-month suspension was ordered but this matter was decided by way of agreement, in which the parties compromised to arrive at a mutually acceptable penalty. Moreover, Mr. Manga’s misconduct was considerably more serious than the Member’s misconduct in that he had made numerous disparaging and racist remarks to students over a prolonged period of time. Mr. Manga’s comments formed part of a far more concerning pattern of behaviour than the Member’s. Accordingly, a suspension of the same duration is not appropriate for the Member’s case.

Based on the above case law, the Committee finds that a three month suspension is appropriate because the Member’s misconduct was not as serious as the misconduct in Chéry, Lowrie, and Manga.

The Committee agrees with College Counsel’s submissions regarding the applicable aggravating factors and finds that the following aggravating factors support a three month suspension. First, the Committee finds that the Member’s refusal to engage in the disciplinary process shows a disregard for the College’s authority as a self-governing body, a significant aggravating factor. Second, the Committee finds it aggravating that this is the Member’s second finding before a panel of the Discipline Committee. Third, the Committee finds that the Member’s absence is an indication of him not taking responsibility for his actions. For a second time, the Member chose not to participate in the discipline process.

The Committee is therefore satisfied that a three-month suspension in the Member’s case is reasonable and appropriate given the circumstances of the Member’s case. Recording the fact of the suspension on the Register will serve to inform other members of the profession that there are serious consequences for engaging in the type of misconduct in which the Member participated.

Coursework

The Committee finds that it is appropriate to order that the Member successfully complete courses of instruction regarding anger management and professional boundaries. The Committee finds that the evidence demonstrated that the Member had difficulty with emotional self-regulation. For example, the evidence established that the Member yelled, banged his fist on the desk, and stomped his feet. The Committee agrees with College Counsel’s submission that the Member would benefit from additional training on managing anger management.

Furthermore, the Committee finds that the evidence demonstrated that the Member had difficulty with managing professional boundaries. For example, the evidence established that the Member made multiple “vagina comments” as well as the “that’s what your mother said comment”. The Committee agrees with College Counsel’s submission that the Member would benefit from additional training on how to maintain boundaries and appropriate connect with students.

As it relates to the classroom management course of instruction, the Committee does not find it necessary to order that the Member successfully complete a second course of instruction on classroom management. As noted above, the Member was ordered to complete a course of instruction on classroom management in his first hearing before the Discipline Committee (see Chong Yen). The Committee is satisfied that the Member enroll in and successfully complete one course of instruction on classroom management.

This element of the Committee’s penalty order is intended to assist with the rehabilitation of the Member. The courses of instruction will assist in the rehabilitation of the Member by providing the Member with strategies to better deal with his interactions with students. It is unacceptable for Members of the profession to use inappropriate language in class or to direct disparaging remarks at students. Members of the profession must control their emotions and maintain their composure, even when dealing with challenging issues in the classroom. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

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

COSTS SUBMISSIONS OF COLLEGE COUNSEL

The College sought costs in the amount of $10,000. College Counsel submitted that a $10,000 costs order was appropriate because the Member was uncooperative and did not attend his hearing. College Counsel submitted that it was appropriate to order $10,000 in costs (the daily amount of Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) that does not require evidence to demonstrate the costs or expenses) because the Member had admitted some of his inappropriate conduct to School administration and a full contested hearing could have been avoided if the Member was more cooperative with the College. Moreover, the Member was made aware of the fact that the College would seek costs if the matter proceeded to a full contested hearing. College Counsel further submitted that the Committee had the authority to order costs against the Member pursuant to paragraph 4 of subsection 30(5) of the Act and Rule 16.05(3) of the Rules. College Counsel also relied on the recent precedents in Ontario College of Teachers v. Williamson, 2017 ONOCT 20 (“Williamson”) and Chong Yen #1, in which the Discipline Committee ordered costs.

COSTS DECISISION

The Committee rendered an oral decision on December 13, 2018, in which it ordered the Member to pay costs of this matter to the College fixed in the amount of $10,000, which must be paid within 120 days of the date of the Committee’s Decision, Reasons for Decision and Order.

REASONS FOR COSTS DECISION

The Committee finds that a costs order of $10,000 against the Member is appropriate in this case. The Committee has the discretion to make an order fixing costs to be paid by the Member to the College pursuant to paragraph 4 of subsection 30(5) of the Act. Furthermore, pursuant to Rule 16.05(3) of the Rules, the College is not required to prove the cost or expense of a hearing if the request is equal to or less than the daily fee of $10,000 to conduct a hearing, which is set out in Tariff A (appended to the Rules).

It is appropriate to order costs against the Member in this case because he was uncooperative with the College and because he refused to engage in the College’s discipline process in any way, despite the College’s numerous attempts to communicate with him (see Exhibits 2 and 3). Had the Member been more cooperative with the College (even without admitting that he engaged in professional misconduct) it is possible that the parties could have agreed on certain facts, which would have led to a shorter hearing and conserved Committee resources.

Members of the profession are not required to admit their professional misconduct because the College bears the burden of proof. However, the Member was advised that the College would seek costs if it were required to proceed with a contested hearing (see Exhibit 2 at Tab N), which it was. Accordingly, the Committee finds that it is reasonable to order costs in this case. The College (and through their registration fees, members of the profession) should not incur the entire costs of contested hearings where the cooperation of a member facing disciplinary action could significantly shorten the hearing and reduce costs and when the member puts forward no defence whatsoever.

With respect to the quantum of the costs, the Committee finds that College Counsel’s proposal of $10,000 is reasonable because the hearing ended early on both December 12, 2018 and December 13, 2018. Therefore, the daily amount of $10,000 (as set out in Tariff A of the Rules) is the appropriate quantum of costs since the total number of hours for this hearing did not exceed one day.

In the circumstances, the Committee was satisfied that an order of costs payable by the Member to the College was just and appropriate.

Date: April 23, 2019

Diane Ballantyne, OCT

Chair, Discipline Panel

Bill Petrie

Member, Discipline Panel

Shanlee Linton, OCT

Member, Discipline Panel

Footnotes

1. 1See Ontario College of Teachers v. Reinders, 2017 ONOCT 62, Ontario College of Teachers v. Douglas, 2017 ONOCT 18 and Ontario College of Teachers v. Crouse, 2016 ONOCT 99, which College Counsel provided to the Committee for reference.