DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v MacAdam 2019 ONOCT 03

Date: 2019-01-16

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

Thomas Bertram MacAdam, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

THOMAS BERTRAM MACADAM (REGISTRATION # 215608)

PANEL: Vicki Shannon, OCT, Chair

Jean-Luc Bernard, OCT

Shanlee Linton, OCT

HEARD: May 17, 2018 and July 24, 2018

Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk

Thomas Bertram MacAdam, self-represented

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 May 17, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated June 25, 2015 was served on Thomas Bertram MacAdam (the “Member”) requesting his presence on September 8, 2015 to set a date for hearing and specifying the allegations. The hearing was subsequently set for and begun on May 17, 2018 and continued on July 24, 2018.

The Member was self-represented but he was not in attendance during the hearing.

Counsel for the College submitted an Affidavit of Amy Leung (Exhibit 3) sworn on May 16, 2018, 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. Leung, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents.

As outlined in the Affidavit of Amy Leung, the Member was previously represented by legal counsel. A copy of the Notice of Hearing and disclosure brief was served on the Member’s previous counsel on June 26, 2015. On November 23, 2017, the Member’s legal counsel (at the time) advised College Counsel that he would no longer be representing the Member in this matter, and asked College Counsel to communicate directly with the Member at his last known address. On November 28, 2017, College Counsel sent a letter to the Member’s last known address advising him of the set date appearance in this matter. College Counsel later learned that the Member did not receive this letter because he no longer lived at that address. College Counsel therefore emailed the Member on December 7, 2017 attaching her November 28, 2017 letter. The Member responded to College Counsel’s email on December 13, 2017 advising her that he had moved out of the province, that he was no longer teaching, and that he would not be able to attend any hearing (Exhibit 3, page 3).

Subsequently, College Counsel emailed the Member on multiple occasions: asking whether the Member wished to pursue a resolution; providing information regarding the dates of his hearing; attaching a copy of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the Rules); reminding the Member of the hearing dates, advising him of the witnesses the College intended to call, and advising him of the range of penalties the College would be seeking if the Committee found him guilty of professional misconduct; and, asking the Member to confirm whether he wished to receive additional disclosure via email or in another format. College Counsel advised the Member that any additional disclosure would be kept until the Member responded. The Member did not respond to College Counsel’s aforementioned emails.

Based on this affidavit, 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 Committee delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.

PUBLICATION BAN

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

This case involves the Member’s inappropriate and aggressive conduct towards a number of students on several occasions. In 2011 and 2012, the Member is alleged to have consistently yelled at his students and to have been rough with students. Among other things, he allegedly pushed, pulled and hit students.

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 on July 24, 2018. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he abused students verbally, contrary to Ontario Regulation 437/97, subsection 1(7); he abused students physically contrary to Ontario Regulation 437/97, subsection 1(7.1); 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)

THE ALLEGATIONS

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

IT IS ALLEGED that Thomas Bertram MacAdam is guilty of professional misconduct as defined in subsection 30(2) of 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) 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);

(e) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Thomas Bertram MacAdam is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Durham Catholic District School Board as a teacher at [XXX] School (the “School”).

3. At all material times, Student 1 was a male student at the Member’s School. Student 2 was a Grade [XXX] male student at the School. Student 3 and Student 4 were Grade [XXX] female students at the School.

4. Between January 1, 2011 and November 28, 2012, the Member consistently yelled at the students under his supervision.

5. Between April 1, 2011 and May 27, 2011, in the afternoon of an undetermined school day, the Member pushed Student 1 while trying to stop him from exiting the classroom.

6. On or about November 28, 2012, the Member:

(a) Hit Student 2 on the head with his hand in the school hallway during a [XXX];

(b) Pulled Student 2’s coat collar while Student 2 was bent over changing his shoes in the school hallway during a [XXX];

(c) Threw the bag of Student 2 at the student; and

(d) Took hold of Student 3 and Student 4 by the shirt sleeves, pinching Student 3 on the upper arm while yelling “Let’s go, let’s go” in the school hallway during a [XXX].

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.

Oral Evidence

The College called five witnesses: (1) Student 1 (as he is referred to in the Notice of Hearing); (2) Student 2 (as he is referred to in the Notice of Hearing); (3) Student 3 (as she is referred to in the Notice of Hearing); (4) Jill Jacobson (“Principal Jacobson”), the principal at the time of the alleged events; and (5) Michael Gray (“Superintendent Gray”), the superintendent of Human Resources at the Board.

The Committee received clear and uncontradicted evidence from the five College witnesses. For reasons that will be set out in greater detail below, the Committee found that the five witnesses’ evidence was credible and consistent with respect to all material facts.

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

Student 1’s Testimony

At the time of the hearing, Student 1 was [XXX] years old, and had recently returned from playing [XXX]in [XXX]. Student 1 attended the School from [XXX] through Grade [XXX]. At the time of the events, Student 1 was [XXX] years old and in Grade [XXX] at the School. Student 1 knew the Member because the Member was his Grade [XXX] teacher.

Student 1’s testimony was brief and was focused on an incident that happened between him and the Member in the classroom between April and May 2011. Student 1 described how the Member shoved him, and explained how the shoving incident made him feel.

Student 2’s Testimony

At the time of the hearing, Student 2 was [XXX] years old and in Grade [XX]. Student 2 attended the School from [XXX] through Grade [XXX]. Student 2 knew the Member because he was a teacher at the School and taught Student 2 [XXX] when he was in Grade [XXX]. Student 2’s Grade [XXX] classroom was also across the hall from the Member’s classroom. At the time of the events, Student 2 was [XXX] years old.

Student 2 testified about an incident that happened between him and the Member on November 28, 2012 during a [XXX] at the School. Student 2 described how this incident made him feel.

Student 3’s Testimony

At the time of the hearing, Student 3 was [XXX] years old and in Grade [XXX]. Student 3 attended the School from [XXX] through Grade [XXX]. Student 3 knew the Member because he was a teacher at the School. Student 3’s Grade [XXX] classroom was also across the hall from the Member’s classroom. At the time of the events, Student 3 was [XXX] years old and in Grade [XXX].

Student 3 testified about an incident that happened between her and the Member on November 28, 2012 during a [XXX] at the School. Student 3 also testified about witnessing an incident on the same day, during the same [XXX], between the Member and Student 4. Student 3 described how these incidents made her feel.

Principal Jacobson’s Testimony

Background

Principal Jacobson has been a member in good standing at the College since 1989. Principal Jacobson is an experienced educator who has worked for the Board since 1989. Among other roles, Principal Jacobson worked as a teacher for two years, a course director, a vice-principal for two years, and a principal for 11 years. Between September 2010 and June 2013, Principal Jacobson was the principal of the School. At the time of the hearing, Principal Jacobson was employed as a principal at another school within the Board.

Principal Jacobson had completed a substantial number of additional qualifications, continuing education courses, and she has been heavily involved in various initiatives within the Board, the Ministry of Education, and the community, as is evident from her curriculum vitae (see Exhibit 5, tab 25). She testified that she is very familiar with the standards of the profession applicable to teachers. Principal Jacobson further testified that she had formed an opinion about whether the Member had met the standards of the profession.

Participant Expert

College Counsel sought to qualify Principal Jacobson as a participant expert on the issue of professional standards applicable to teachers. According to the College, it would be appropriate to qualify Principal Jacobson as such, given her significant experience as an educator, administrator, course director and given her involvement in the investigation of the complaints regarding the Member.

The Committee qualified Principal Jacobson as a participant expert on the issue of professional standards applicable to teachers at the material times. Principal Jacobson meets the definition of a participant expert as set out in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”) in that she is a witness who “[formed] opinions based on [her] participation in the underlying events rather than because [she was] engaged by a party to the litigation to form an opinion” (Westerhof at paragraph 6). Principal Jacobson is well versed in the standards of the teaching profession, was directly involved in the investigation into the Member’s conduct and had formed an opinion concerning the Member and his non-adherence to the professional standards.

Testimony

Background on Role, Responsibilities and School Policies

Principal Jacobson testified in detail about her duties and established practices as the principal of the School. She explained that she was responsible for various aspects of the School’s functioning, including the building itself; developing and implementing teaching and learning plans; promoting student learning and achievement; conducting teacher appraisals; and the health and safety of both the students and the staff.

Principal Jacobson testified that it was her daily practice to “keep notes in a spiral bound note book.” She explained that she would take her handwritten notes and type them on the computer the same evening or the following day. Principal Jacobson testified that she has been using this daily practice since she started teaching in 1989.

Principal Jacobson testified extensively about the School’s policies, procedures, and the College’s Standards of Practice for the Teaching Profession and Ethical Standards for the Teaching Profession, applicable to all teachers. Principal Jacobson explained that, during her time as principal, all staff received a handbook during orientation that contained pertinent information, such as Board policies and codes of conduct. In addition to the handbook, all teachers at the School received a document that Principal Jacobson created that outlined important aspect of various policies and procedures (Exhibit 5, tab 25B). Among other information, this document contained: the School’s entry/exit routes for [XXX]s; tips on “progressive discipline” (for example, “do not address behaviour issues in front of other students”); tips on how to deal with escalating behaviour (for example, “do not touch the child”; “refrain from any physical measures”); and, an outline of professional expectations, which included Board polices and the College’s Ethical Standards and Standards of Practice of the Teaching Profession. Principal Jacobson testified that the document at Exhibit 5, tab 25B was the same document handed to all staff at the School in 2011 and 2012.

In addition, Principal Jacobson testified about a presentation given to all staff in September 2011 (Exhibit 5, tab 25C). The PowerPoint presentation, titled Teacher-Student Boundaries: Teachers as Role Models, summarized teachers’ important legal duties and legal obligations. Similarly, Principal Jacobson testified that the Board resource, titled be wary, be wise, was given to all staff when she was the principal at the School (Exhibit 5, tab 25D). Among other details, this resource outlined what proper teacher-student relationships look like, and contained numerous example of “best practices” (for example, “avoid touching students when reprimanding or disciplining them”).

Principal Jacobson further testified that the School held an annual “Safe Schools Week” where important safety policies and procedures are reviewed with students and staff. Specifically, Principal Jacobson testified about a slideshow presented to all students and staff on September 20, 2010 that reviewed the procedures for fire drills, bomb threats, and internal lockdowns (Exhibit 5, tab 25E). Further, Principal Jacobson stated that all teachers are given a large package containing emergency policies and procedures. As a part of that package, there is a specific section on “[XXX] procedure” (Exhibit 5, tab 25G). Principal Jacobson testified that all of the safety polices and procedures had been in place at the School since she started working there as principal.

Involvement with the Member

Principal Jacobson first met the Member in September 2010, when both Principal Jacobson and the Member were new to the School. Principal Jacobson supervised the Member from September 2010 to June 2013.

Principal Jacobson testified that she was heavily involved in the investigation and fact finding process in relation to the allegations against the Member. Specifically, she testified about the number of complaints from parents and students regarding the Member’s yelling (for example, see Exhibit 5, tab 7). Principal Jacobson stated that she mediated many of the complaints and implemented multiple plans of action and other supports in an attempt to assist the Member (for example, see Exhibit 5, tabs 8, 9, 10 and 13). She explained that despite many attempts at supporting the Member, the complaints continued. The Board retained Dr. Arnold to provide the Member with individualized instruction and the Member met with him on four occasions (Exhibit 5, tabs 11 and 14).

Principal Jacobson testified that the complaints were not only related to the Member’s yelling, but also to inappropriate physical contact. She stated that the allegations of physical contact between the Member and students started in 2010 (prior to the allegations in the Notice of Hearing) and this conduct informed her approach with the Member in 2011. In particular, Principal Jacobson testified extensively about her involvement in the investigation into the “shoving incident” where the Member shoved Student 1 with his forearm in or about April or May, 2011. She reviewed her notes regarding the investigation into this incident, as well as the Board’s letter to the Member in response to his conduct (see Exhibit 5, tab 16 and 17).

Principal Jacobson further testified about the [XXX] that occurred on, or about, November 28, 2012. She explained that during this incident the Member hit Student 2 over the head, pulled his coat collar, and threw his backpack at him. The Member also took hold of Student 3 and Student 4 by their shirt sleeves and yelled at them. Principal Jacobson testified extensively about her involvement in the investigation of the [XXX] (see Exhibit 5, tab 19). She also testified about both the CAS and Board investigations and conclusions regarding the [XXX] (see Exhibit 5, tabs 20-23). Principal Jacobson also testified about Dr. Arnold conclusions regarding the Member following Dr. Arnold’s second set of sessions with the Member in 2013 (see Dr. Arnold’s report at Exhibit 5, tab 24).

Superintendent Gray

Superintendent Gray has been in his current role as Superintendent of Human Resources at the Board since August 2008 (see Superintendent Gray’s curriculum vitae at Exhibit 5, tab 26). He testified that his role requires that he manage all aspects of the Human Resources portfolio at the Board, including: employee and labour relations; disciplinary matters and professional misconduct; staffing; human rights complaints; and disability management.

Superintendent Gray testified extensively about the Board’s bullying prevention and workplace violence policies; its code of conduct; its workplace harassment and sexual harassment policy; its student protection policy; and its mission statement (see Exhibit 5, tabs 26A-F).

Superintendent Gray testified further about the Member’s employment history with the Board (see Exhibit 4). The Member’s employment history included the following information: an administrative transfer to the School in September 2010 where he taught Grade [XXX]; sent home pending investigation on May 27, 2011 and did not return for the rest of the academic year; taught Grade [XXX] at the School during the 2012-2013 academic year; and, was sent home pending investigation on November 30, 2012 and was then assigned supply coverage duties for the remainder of the school year on April 22, 2013.

Superintendent Gray also testified in depth about the Board’s discipline process and the various steps the Board takes when a complaint is made. Superintendent Gray then testified specifically about the various measures the Board used to assist the Member. These measures included: administrative transfers to assist with a “fresh start” at new schools; various grade placements, to set the Member up for successful classroom management; matched the Member at a school with a good principal who could support him; three referrals to Dr. Arnold; multiple consultants were brought into to help the Member in his delivery of curriculum, and to help support the Member’s implementation of his classroom management course; hired a personal professional coach for Member, who was a retired elementary school principal; and worked to accommodate the Member through the Teacher Performance Appraisal Process by adjusting timelines. Superintendent Gray explained that the Board used the progressive discipline approach with the Member, and tried to give him every opportunity they could to help him improve. Ultimately, according to Superintendent Gray, the Member was offered the opportunity to retire with dignity, instead of terminating him with cause. The Member retired on June 30, 2016.

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 thoroughly reviewed the relevant evidence with the Committee and submitted that the five College witnesses were credible. Through extensive submissions, College Counsel highlighted the key aspects of the witnesses’ testimony and the documentary evidence to prove how each head of misconduct alleged had been proven on a balance of probabilities. College Counsel stated that the uncontradicted witness testimony and the contemporaneous documentary evidence demonstrated that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

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 July 24, 2018, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(15), 1(18) and 1(19).

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) The Member consistently yelled at the students under his supervision

The Committee finds that between January 1, 2011 and November 28, 2012, the Member consistently yelled at the students under his supervision, as alleged at paragraph 4 of the Notice of Hearing.

Although the Member could have participated in his hearing, he decided not to and therefore did not cross-examine the College’s witnesses or present any evidence in his defence. The following evidence from Principal Jacobson is therefore uncontradicted.

Direct Evidence

Principal Jacobson testified about various incidents that occurred in the Member’s classroom between May 10 and 17, 2011, and summarized her notes regarding these incidents (see Exhibit 5, tab 13). Among other incidents, Principal Jacobson testified that on May 17, 2011, she was walking by the Member’s classroom and witnessed him yelling at the students. She stated that she intervened, spoke with the students, and got the students back on track. Principal Jacobson testified that she spoke with the Member after school and told him “he was yelling and that valuable class time was taken up by his ongoing verbal disciplining of the students” (Exhibit 5, tab 13). She testified that she forwarded her notes (at Exhibit 5, tab 13), to Brian O’Sullivan (“Mr. O’Sullivan”), a superintendent at the Board.

Hearsay Evidence

Principal Jacobson testified that she received multiple reports that the Member continuously yelled in the classroom. She explained that despite various attempts to provide support and guidance to the Member regarding appropriate classroom management, the Member consistently yelled at students under his supervision.

Principal Jacobson referred to an action plan created by her for the Member in January 2011 (see Exhibit 5, Tab 8), with a focus on “behaviour management, frustration levels, [and] the emotional well-being of the students.” She explained that this was not the first action plan created for the Member. Principal Jacobson stated that following the January 2011 action plan, she received additional complaints from parents regarding the Member’s yelling in the classroom. She asked the parents to draft a letter summarizing their complaints against the Member. In a letter dated January 25, 2011, one parent explained to Principal Jacobson that his son returns home from his day in the Member’s class and retreats to his room (Exhibit 5, tab 7). According to this parent, “there is a lot of yelling, discipline issues, and general negativity” in the Member’s classroom (Exhibit 5, tab 7). In a letter dated January 26, 2011, a second parent explained that there are continuous interruptions in the classroom due to “teacher/student conflict” resulting from the Member’s yelling (Exhibit 5, tab 7). In a third letter, a parent filed a formal complaint against the Member alleging, among other things, that he “uses a very harsh tone that is perceived to be always angry at the students” (Exhibit 5, tab 7).

Principal Jacobson testified that she met with the Member, the Member’s OECTA representative, Mr. O’Sullivan (the Superintendent of Education), and Jack Wallace (“Mr. Wallace”), the Acting Senior Employee Relations Officer, on January 27, 2011 to discuss the “large number of parent complaints” the School had received about the Member. She explained that the issues discussed in this meeting were not new, and that during this meeting they implemented further extensive supports for the Member with very specific directions and expectations.

Principal Jacobson stated that following this meeting, Mr. O’Sullivan sent a letter (dated February 7, 2011) to the Member accurately recapping what occurred during the meeting (Exhibit 5, tab 9). In this letter, Mr. O’Sullivan summarized the 10 parental complaints reviewed during the January 27, 2011 meeting where, among other things, the “overall tone of each of the complaints is that their children feel they are being ‘picked on’ [and] that there is yelling going on [in] the classroom as a form of discipline…” Included in this letter to the Member was a plan of action drafted by Principal Jacobson (dated January 27, 2011), which stated that the Member is to “use [a] quiet, calm voice when redirecting student behaviour, [is] to be cognizant of tone of voice used, and [is] to refrain from yelling” (Exhibit 5, tab 9).

Principal Jacobson stated that she reviewed the January 27, 2011 (Exhibit 5, tab 9) plan of action with the Member on March 8, 2011, and created a summary of what was discussed during this meeting with the Member (Exhibit 5, tab 10). Regarding the Member’s implementation of “behaviour management and positive discipline techniques” (one of many elements in the action plan), Principal Jacobson advised the Member of four new parental complaints about continued yelling in the classroom and noted that “positive discipline and tone of the classroom were still an area of concern” (Exhibit 5, tab 10).

On March 11, 2011, Mr. Wallace sent a letter to Dr. Arnold, an associate professor in the Department of Human Development and Applied Psychology at the University of Toronto, requesting that she develop “an individualized program of instruction for [the Member] relating to fostering appropriate teacher-student and teacher-parent boundaries, professional relationships, and classroom management.” (Exhibit 5, tab 11). Principal Jacobson testified that she was copied on this letter to Dr. Arnold and that the letter was sent because, despite prior efforts and action plans, improvements in the Member’s classroom management and positive discipline techniques had not occurred. She stated that among other things, the Member continued to use yelling as form of classroom management and discipline.

In an email to Mr. O’Sullivan, dated May 13, 2011, Principal Jacobson summarized a further complaint from a parent about the Member (Exhibit 5, tab 12). Principal Jacobson testified that she drafted this email after meeting with a student’s parent who wanted her daughter transferred out of the Member’s class. Among other complaints, the student’s parent advised Principal Jacobson that the Member “picks on [the student] and yells at her” (Exhibit 5, tab 12). Principal Jacobson testified that she sent this email seeking direction and assistance from Mr. O’Sullivan regarding the Member.

Following a separate incident, a student in the Member’s class drafted a report to Principal Jacobson outlining her concerns regarding the Member. Principal Jacobson testified that this student reported to her that the Member “yells everyday” (Exhibit 5, tab 16).

Principal Jacobson testified that on June 30, 2011 the Member received a letter from Mr. O’Sullivan (on which she was copied), notifying the Member that he was suspended from work for a period of one week (Exhibit 5, tab 17). In this letter, Mr. O’Sullivan noted that one of the reasons the Member was being suspended was due to the consistent concerns regarding his classroom management style and continuous yelling. Principal Jacobson explained that the Member failed to implement the various action plans put in place for him, and that he was being suspended because of consistent recurring concerns, including yelling at students.

On November 24, 2011, Principal Jacobson testified that she received a further complaint from a parent who indicated that the Member yelled at her child (Exhibit 5, tab 18). Principal Jacobson met with the Member on November 28, 2011 and discussed with him the importance of ensuring the well-being of students (Exhibit 5, tab 18).

Credibility Assessment and Conclusion

The Committee finds it more likely than not that, between January 1, 2011 and November 28, 2012, the Member continually yelled at students under his supervision. The Committee received direct testimony from Principal Jacobson who witnessed the Member yelling at his students.

Further, Principal Jacobson testified about the multiple complaints she received from parents and the complaint from a student regarding the Member’s continuous yelling. The Committee recognizes that Principal Jacobson’s testimony regarding the parental and student complaints is hearsay, but notes that hearsay evidence is admissible in discipline hearings, and finds Principal Jacobson’s evidence in this regard to be reliable.

First, Principal Jacobson’s testimony regarding the student’s complaint that the Member “yells everyday” was consistent with the student’s handwritten statement (see Exhibit 5, tab 16A).

Second, Principal Jacobson’s testimony about the three parental complaints she received in January 2011, was formalized in a letter that was drafted by each parent, dated, signed and then sent to Principal Jacobson (see Exhibit 5, tab 7).

Finally, Principal Jacobson’s testimony about further complaints she received about the Member’s yelling throughout 2011 were consistent with her notes of the complaints (see Exhibit 5, tabs 12 and 18). The Committee finds Principal Jacobson’s notes to be reliable because they were very detailed and taken contemporaneously with the incident. Further, the letter to the Member from Mr. O’Sullivan (on behalf of the Board) notifying him of his one-week suspension stated that the allegations had to do with poor classroom management and yelling, among other things, and that they were substantiated (see Exhibit 5, tab 17).

2) The Member pushed Student 1

The Committee finds that, between April 1, 2011 and May 27, 2011, in the afternoon of an undetermined school day, the Member pushed Student 1 while trying to stop him from exiting the classroom, as alleged at paragraph 5 of the Notice of Hearing. The Committee received Student 1’s oral evidence regarding this incident, the oral evidence of Principal Jacobson regarding her investigation into this matter, and a student’s handwritten statement who witnessed this incident.

Although the Member could have participated in his hearing, he decided not to and therefore did not cross-examine the College’s witnesses or present any evidence in his defence. The following evidence is therefore uncontradicted.

Evidence

In his oral testimony, Student 1 stated that in April or May 2011 the Member used his forearm to shove Student 1 back into the classroom. Student 1 testified that, on the day of this incident, the Member wanted him to stay after school. He told the Member he could not stay because he needed to get on the bus to take a Grade[XXX] student (“the young student”) home that lived near him. Student 1 explained that the young student was not allowed to take the bus alone so he needed to accompany him home. On the day of the incident, Student 1 was on [XXX] and when he tried to leave the Member’s class, the Member blocked Student 1 from exiting and “shoved him back” into the classroom with his forearm.

Similarly, Principal Jacobson testified that she found out about the shoving incident on May 27, 2011. She stated that Student 1 asked the Member for permission to leave explaining that he needed to take the young student home on the bus. The Member told Student 1 that he could not go and asked him to sit down. Student 1 tried to get out of the classroom, but the Member was blocking his pathway. When Student 1 tried to squeeze through the doorway the Member shoved him back into the classroom with his forearm. Principal Jacobson testified that she was upset when she found out about this incident. She explained that she interviewed Student 1, a student who witnessed this incident, and the Member, and that her notes at Exhibit 5, tab 16 were an accurate reflection of these interviews.

The Committee also received a handwritten statement from a student (the “Student Witness”) who witnessed the shoving incident (Exhibit 5, tab 16A). The statement is consistent with Student 1’s oral testimony as well as his statement given to Principal Jacobson during his interview with her (Exhibit 5, tab 16). The Student Witness stated that:

[Student 1] was telling [the Member] that he had to go pick up [the young student]. [The Member] wouldn’t let [Student 1] out to get [the young student]. [Student 1] quickly runs to the door to try and leave but [the Member] gets there before him.

[Student 1] says “I have to get [the young student], can I please go?” [The Member] says “No, I’m the teacher.”

[Student 1] is trying to squeeze out of the classroom in a gap in the door…[The Member] pushes him back with his forearms.

Further, the Committee considered the contents of the letter from Mr. O’Sullivan (on behalf of the Board) to the Member, dated June 30, 2011 (Exhibit 5, tab 17). This letter stated that the Member was suspended for one week without pay because “[his] actions [had] manifested themselves by way of, and not limited to: …physical altercations with students…” The letter goes on to state that:

as a result of the most recent allegations and parental concerns, which have been substantiated, you are hereby suspended from work without pay for one week due to your continual failure to perform your teaching duties to an acceptable standard” [emphasis added].

Credibility Assessment and Conclusion

In light of this evidence, the Committee finds that it is more likely than not that the Member pushed Student 1 while trying to stop him from exiting the classroom. The Committee finds the College’s uncontradicted evidence reliable. Student 1 presented as a reliable witness who testified in an honest and forthright manner. The Committee notes that Student 1’s interview with Principal Jacobson (as reflected in her notes at Exhibit 5, tab 16) was more detailed than his oral testimony. However, the Committee finds that this does not affect the strength of Student 1’s evidence because the material facts remained the same; namely, that the Member shoved Student 1 with his forearm when Student 1 tried to leave the classroom. The Committee finds it reasonable that Student 1’s testimony, nearly seven years after the fact, was less detailed than his account of the shoving incident to Principal Jacobson, which occurred shortly after this incident.

The Committee also recognizes that the Student Witness’s statement is hearsay, but notes that hearsay is admissible in discipline hearings and finds that the hearsay evidence in this regard is reliable. The Student Witness’s statement (Exhibit 5, tab 16A) was drafted a few weeks after the shoving incident, and is consistent with Student 1’s interview with Principal Jacobson (Exhibit 5, tab 16) as well as his oral testimony.

3) The Member hit Student 2 on the head, pulled Student 2’s coat collar, and threw Student 2’s bag at him

The Committee finds that, on or about November 28, 2012, the Member: hit Student 2 on the head with his hand in the school hallway during a [XXX]; pulled Student 2’s coat collar while he was bent over changing his shoes in the school hallway during a [XXX]; and threw Student 2’s bag at him, as alleged at paragraphs 6(a)-(c) of the Notice of Hearing. The Committee received oral evidence from Student 2 and Principal Jacobson in relation to these incidents. The Committee also received documentary evidence from Principal Jacobson, the Board, and CAS regarding their conclusions about this incident.

Although the Member could have participated in his hearing, he decided not to and therefore did not cross-examine the College’s witnesses or present any evidence in his defence. The following evidence is therefore uncontradicted.

Student 2’s Evidence

Student 2 testified that on November 28, 2012, a [XXX] at the School went off and he left his classroom to collect his jacket and backpack from his hook. Student 2 explained that his classroom was right across the hall from the Member’s and that, when the [XXX] went off, the Member walked out of his own classroom, saw Student 2 collecting his things, and then told Student 2 to leave his things behind. The Member then proceeded to take Student 2’s backpack and jacket and throw them at him. Student 2 stated that the Member hit him on the back of the head, and then grabbed him by the collar and “tugged him”. Student 2 testified that when the Member hit him on the head it “kind of hurt because [the Member] was wearing a ring.” The Member’s actions startled Student 2. He testified that he was scared and shocked that a teacher did this to him. Student 2 went home that day and told his mother about the [XXX].

Principal Jacobson’s Evidence

Incident Report and CAS Investigation

Principal Jacobson testified in detail about the information she gathered during the investigation into the [XXX] (Exhibit 5, tab 19). She testified that she found out about the [XXX] from Student 2’s mother, who had called her on November 28, 2012 and left a message explaining that her son was “very upset regarding the [XXX] that went off.”

Principal Jacobson then met with Student 2’s teacher (“Colleague 1”), who witnessed the [XXX]. According to Colleague 1, the Member aggressively pulled on the coat collar of Student 2 after the [XXX] went off. Principal Jacobson stated that Colleague 1 was “troubled” by what she had witnessed.

Following the interview of Colleague 1, Principal Jacobson interviewed Student 2, who reported that the Member “reached over my head and hit me in the back of the head. He took my bag off the hook and threw it at me.” She stated that Student 2 was visibly upset during the interview.

Following her interview of Colleague 1 and Student 2, Principal Jacobson testified that she contacted the superintendent of the School and, based on the advice of the superintendent, she reported the [XXX] to CAS. Principal Jacobson testified that on November 30, 2012 she advised the Member of the situation and informed him that he would be assigned to home duties with pay, pending the CAS investigation. She stated that a formal letter would be sent to the Member on December 3, 2012 (Exhibit 5, tab 20).

Principal Jacobson testified that she spoke to an intake worker at CAS on November 30, 2012 and relayed all of the pertinent details of the [XXX]. On December 3, 2012, Principal Jacobson spoke with the caseworker assigned to investigate this incident, who asked Principal Jacobson to suspend her own investigation pending the completion of the CAS investigation.

Between December 5 and December 11, 2012, the CAS caseworker attended the School to conduct interviews. Principal Jacobson testified that, prior to the Christmas break, the CAS caseworker phoned her and advised her that a letter was being sent to the Member informing him that “the action of contact was verified and that [the contact] was overzealous” (Exhibit 5, tab 19). The letter from CAS stated:

It is important to note, however that the [CAS] did not conclude that the allegations did not occur, but rather that there was insufficient evidence to conclude that “the actions were done with the intent to harm the children.

The [CAS] strongly cautions [the Member] against using physical force with students. The students interviewed were clearly adversely affected by the manner in which [the Member] dealt with the situation (Exhibit 5, tab 21).

Principal Jacobson completed an Incident Report capturing all of the details of the investigation into the [XXX] noted above (Exhibit 5, tab 19). Included in the Incident Report are Principal Jacobson’s: interview notes with Colleague 1 and Student 2; the notes from her follow up with the Member notifying him that he was being sent home pending an investigation; the notes from her call with the CAS; notes documenting the CAS investigation, including summaries of interviews conducted; documentation of instructions from the superintendent; and notes from follow-up interviews she conducted with two students and Colleague 1.

Board Investigation and Conclusion

Principal Jacobson testified that after the CAS completed their investigation into the [XXX], the Board conducted their own investigation into this incident. Principal Jacobson stated that, on February 6, 2013, she was copied on a letter from the Board’s Senior Employee Relations Officer (“Board Employee 1”) to the Member notifying the Member of an upcoming meeting on February 14, 2013 (Exhibit 5, tab 22). The letter stated that during this meeting the Member would be expected to respond to the allegation that the Member hit a student on the head and threw his backpack at him during a [XXX] on November 28, 2012 (Exhibit 5, tab 22). The Member denied the allegations (see notes of the meeting at Exhibit 5, tab 22). Principal Jacobson testified that the Board concluded their investigation and found that the allegations that the Member made inappropriate physical contact with Student 2 during the [XXX] on November 28, 2012 were substantiated (Exhibit 5, tab 23).

On April 17, 2013, Principal Jacobson was copied on a letter from the Superintendent of Education (“Board Employee 2”). In this letter, the Board advised the Member that the allegations that the Member hit Student 2 on the head with his hand, and threw Student 2’s backpack at him were substantiated. The letter outlined the Board’s “grave concerns” with the Member’s continued misconduct despite the numerous supports put in place by the Board, including courses of instruction, personal mentors, and administrative transfers (Exhibit 5, tab 23). Further, the letter highlighted the cautionary and disciplinary letters the Member had received since 2010, including a one-week suspension with the direction to maintain a “hands-off policy” with students (Exhibit 5, tab 23). In this letter, Board Employee 2, advised the Member that based on his past discipline record with the Board, he received a one-week disciplinary suspension and that he would resume active teaching duties on April 22, 2013 where he would be assigned to “supply coverage duties for the remainder of the 2012/2013 school year” (Exhibit 5, tab 23).

Principal Jacobson testified that the Board’s conclusions were based on the students’ reports (Exhibit 5, tab 19). She explained that, following the disciplinary suspension in April 2013, the Member did not return to his prior Grade [XXX] classroom. Principal Jacobson explained that this decision was made to ensure that the well-being and learning of the students in that class were not impeded by the Member.

Credibility Assessments and Conclusion

In light of the above evidence, the Committee finds it more likely than not that the Member hit Student 2 on the head with his hand, pulled Student 2’s coat collar, and threw Student 2’s backpack at him during a [XXX] on or about November 28, 2012.

The Committee finds Student 2’s and Principal Jacobson’s uncontradicted evidence to be reliable. Student 2 presented as an honest witness, who testified in a forthright manner without overstating his evidence. Student 2 was clearly negatively affected by this incident, as he was able to clearly recall the specific details of the [XXX] despite the fact that many years had passed.

The Committee notes that Principal Jacobson’s evidence was hearsay, but finds that her evidence in this regard is reliable. Principal Jacobson testified in detail about her involvement in the investigation of the [XXX]. Her testimony was consistent with the direct evidence of Student 2, as well as with her investigation notes at Exhibit 5, tab 19. Principal Jacobson’s notes were taken contemporaneously with the conversations and interviews conducted, and contained direct quotes from the interviewees in italics. Further, Principal Jacobson’s testimony was consistent with the Board’s investigation and conclusions regarding the [XXX] (Exhibit 5, tabs 22 and 23).

4) The Member took hold of Student 3 and Student 4

The Committee finds that, on or about November 28, 2012, the Member took hold of Student 3’s and Student 4’s shirt sleeves, pinching Student 3 on the upper arm while yelling “let’s go, let’s go” in the School hallway during a [XXX], as alleged at paragraph 6(d) of the Notice of Hearing. The Committee received oral evidence from Student 3 and Principal Jacobson. The Committee also received documentary evidence from Principal Jacobson and the Board regarding their conclusions about this incident.

Although the Member could have participated in his hearing, he decided not to and therefore did not cross-examine the College’s witnesses or present any evidence in his defence. The following evidence is therefore uncontradicted.

The Evidence

Student 3 testified that her classroom was located across the hall from the Member’s classroom. She stated that on November 28, 2012, a [XXX] went off at the School and she and her friend left their classroom to gather their belongings. Student 3 testified that the Member grabbed her and her friend (Student 4) by the upper arm and yelled, “let’s go, let’s go, let’s go.” Student 3 stated that the Member pinched her arm when he did this and that she was scared because she thought, “teachers are not supposed to touch students.” Student 3 reported this incident to her teacher.

As noted above, Principal Jacobson testified in detail about the information she gathered during the investigation into the [XXX] (Exhibit 5, tab 19). During the course of the CAS’s investigation, Principal Jacobson was present for the CAS caseworker’s interview of Student 3 where she drafted contemporaneous notes of what was said during these interviews, including verbatim quotations from the student (Exhibit 5, tab 19). On December 6, 2012, Student 3 told the CAS caseworker and Principal Jacobson that the “[Member] grabbed my sleeve and [Student 4’s] yelling ‘let’s go, let’s go” (Exhibit 5, tab 19). Student 3 stated that the Member “kinda pinched me [on] my upper arm” (Exhibit 5, tab 19).

During the Member’s meeting with the Board and OECTA representative on February 14, 2013, the Member denied grabbing Student 3 and Student 4 by the sleeve (see notes of the meeting at Exhibit 5, tab 22).

As noted above, on April 17, 2013, a letter from Board Employee 2 was sent to the Member that: outlined the allegations made against the Member on November 28, 2012; reviewed the Board’s conclusions regarding these allegations; and advised him of his disciplinary suspension. Included in the allegations stemming from the [XXX], was the allegation that “[the Member] grabbed two female students by the sleeves, pinching one of the students on the upper arm while yelling ‘let’s go, let’s go” (Exhibit 5, tab 23). The letter goes on to state that while the Member denied the allegations, the Board concluded that the allegations had been substantiated (Exhibit 5, tab 22). Principal Jacobson testified that the Board’s conclusions in this letter were based on the students’ reports at Exhibit 5, tab 19.

Credibility and Conclusions

In light of the above evidence, the Committee finds it more likely than not that the Member took hold of Student 3 and Student 4 by the shirt sleeves, pinching Student 3 on the upper arm while yelling “let’s go, let’s go” during a [XXX] at the School, on or about November 28, 2012.

The Committee received direct and uncontradicted evidence from Student 3 about how the Member grabbed her by the sleeve, pinched her upper arm, and yelled, “let’s go, let’s go.” The Committee found that Student 3’s evidence was reliable because she presented as an honest witness who testified in a forthright manner. Her testimony was consistent with her report to the CAS caseworker and Principal Jacobson (Exhibit 5, tab 19).

The Committee notes that Student 3’s testimony and Principal Jacobson’s evidence (oral and documentary) as it relates to Student 4 is hearsay. However, hearsay is admissible in discipline hearings and the Committee finds the hearsay evidence reliable in relation to this incident. Student 3 was present during the [XXX] on November 28, 2012 and witnessed the Member grabbing Student 4 by the sleeve and yelling, “let’s go, let’s go.” Student 3’s testimony about what she witnessed is consistent with her account of the events to the CAS caseworker and Principal Jacobson during the December 6, 2012 interview (Exhibit 5, tab 19). Further, the Committee finds Principal Jacobson’s notes at Exhibit 5, tab 19, reliable because they were taken contemporaneously with the interview of Student 3 and they contain verbatim quotations from Student 3.

Legal Conclusions

The Member engaged 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 abused students verbally, contrary to Ontario Regulation 437/97, subsection 1(7); he abused students physically contrary to Ontario Regulation 437/97, subsection 1(7.1); 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).

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. The Committee received evidence from Principal Jacobson establishing the standards of the profession applicable to teachers during the material times. Principal Jacobson was qualified as a participant expert, and opined that the Member did not meet the standards of the profession applicable to teachers. For the reasons described above, the Committee finds that Principal Jacobson presented as a reliable expert witness. She gave clear evidence of her involvement in the investigation of the events in question, and of the Member’s breach of the standards of the profession. Principal Jacobson presented as an unbiased witness. At the end of her testimony, Principal Jacobson became emotional in a way that demonstrated empathy for the Member. Principal Jacobson was emotional when she testified that the Member repeatedly failed to meet the standards of the profession during her three years as principal of the School.

Principal Jacobson testified that the Member breached both the Standards of Practice for the Teaching Profession and Ethical Standards for the Teaching Profession (Exhibit 5, tab 25A) when he continuously yelled at students under his care; when he shoved Student 1 back into the classroom with his forearm; and, when he made inappropriate physical contact with Student 2, Student 3 and Student 4 during a [XXX].

Specifically, in relation to the Member’s continued yelling between January 1, 2011 and November 28, 2012, Principal Jacobson testified that the Member’s actions demonstrated a concerning pattern of unprofessional behaviour. She stated that, despite the numerous supports put in place to assist him, the Member refused to correct his teaching practices. Principal Jacobson testified that he breached the Standards of Practice for the Teaching Profession because he failed to show commitment to students and student learning, and did not put his professional knowledge into practice. The Member’s continued yelling demonstrated shortcomings in his teaching and behaviour management strategies and acceptable pedagogy. Further, Principal Jacobson testified that the Member’s continued yelling breached the Ethical Standards for the Teaching Profession, by failing to show commitment to “student well-being and learning through positive influence, professional judgment and empathy in practice” (Exhibit 5, tab 25A).

Principal Jacobson further testified that the Member failed to maintain the standards of the profession when he physically shoved Student 1 (in April or May 2011); when he hit Student 2 on the head, grabbed him by the collar, and threw his backpack at him during the [XXX] (on or about November 28, 2012); and when he grabbed Student 3 and Student 4 by the shirt sleeves, pinching Student 3’s arm, and yelling “let’s go, let’s go” during the [XXX]. Principal Jacobson stated that the Member’s conduct (as noted above) demonstrated a lack of commitment to students and student learning, and professional practice (both of which are Standards of Practice for the Teaching Profession). The Member failed to treat students with respect and failed to promote a safe and supportive learning environment when he made unnecessary physical contact with Students 1, 2, 3 and 4. Principal Jacobson testified that it is never acceptable for a teacher to use physical force as a form of discipline, and that by doing so the Member failed to meet the standard of professional practice. The Member failed to implement the progressive discipline techniques expected of him, despite the numerous supports in place and the various resources provided to him, which outlined appropriate discipline strategies.

Similarly, the Member’s conduct demonstrated a breach of the ethical standards of care and integrity, by failing to show “commitment to student well-being and learning through positive influence and professional judgment”, and by failing to “exercise integrity in [his] professional responsibilities” (Exhibit 5, tab 25A). Principal Jacobson testified that the expectation is that teachers do not escalate the stress caused during emergency situations. She stated that the Member failed to act as a role model and instead added further stress to an already stressful situation when he: hit Student 2 on the head, grabbed him by the collar, and threw his backpack at him; and, grabbed Student 3 and Student 4 by the sleeves, yelling “let’s go, let’s go”, during the [XXX] on or about November 28, 2012. Principal Jacobson testified that there was no reason for the Member to engage in physical contact with the students. She stated that students look to teachers as role models in frightening situations and that the Member’s actions during the [XXX] frightened these students more.

2) The Member abused students verbally contrary to Ontario Regulation 437/97, subsection 1(7)

The Committee finds that the Member abused students verbally. Between January 1, 2011 and November 28, 2012, the Member yelled at the students under his supervision. The Committee finds that the Member’s continuous yelling demonstrated a concerning pattern of behaviour and created a hostile and negative classroom environment for his students. His yelling created a classroom climate where students were uncomfortable and afraid. In fact, parents requested that their children be moved out of the Member’s classroom because of his constant yelling (for example, see Exhibit 5, tab 7).

Despite the various supports in place to assist the Member with his classroom management style, the Member failed to implement the progressive discipline techniques expected of him. While the Committee recognizes that being a teacher can be challenging, yelling is not an appropriate form of communication with students. Teachers are expected to interact respectfully with students and to model appropriate behaviour. The Member failed to meet these expectations, his continuous yelling was inappropriate and he created an environment where students were unable to learn effectively.

3) The Member abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1)

The Committee finds that the Member abused Students 1, 2, 3 and 4 physically. The Member shoved Student 1 with his forearm to prevent him from exiting the classroom. The Member hit Student 2 on the head with his hand and grabbed him by the collar during a [XXX] at the School on or about November 28, 2012. Further, the Member grabbed Student 3 and Student 4 by the shirt sleeves, pinching Student 3 on the upper arm, during the same [XXX]. There was no acceptable reason for the Member to behave in a rough and aggressive manner with students. The deliberate use of unnecessary physical force against students constitutes physical abuse and is strictly prohibited.

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 encourage his students in the pursuit of their learning by continuously yelling at them, which created an uncomfortable learning environment.

Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” This provision is commonly understood to mean that teachers must act as positive role models for students. By yelling at, hitting, and pushing students, the Member behaved 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. The public and the teaching profession do not tolerate the verbal or physical abuse of students. Through his conduct, the Member violated the trust that the public places in teachers. When parents send their children to school, they expect that they will be safe. The Member’s breach of this trust was unacceptable.

The Member’s continuous yelling at students formed a concerning pattern of inappropriate and unprofessional behaviour. Despite the prior warnings from the School administration and the various supports put in the place to assist the Member, he continued to yell at students under his care as a form of discipline. The Member’s yelling negatively impacted the students’ learning environment.

Further, the Member physically abused four students. He shoved Student 1 with his forearm, hit Student 2 on the head, grabbed him by the collar, and threw his backpack at him, and also grabbed Student 3 and Student 4 by their shirt sleeves. The Member’s actions made these students feel afraid and anxious.

As an experienced educator, the Member should have known better than to engage in the verbal and physical abuse of students, and the Committee is disturbed that he did not. The type of behaviour the Member engaged in is completely unacceptable. It is disgraceful, dishonourable and unprofessional.

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 by verbally and physically abusing the Student. Through his unprofessional conduct, the Member undermined the reputation of the teaching profession. It reflects poorly on the profession as a whole when members behave aggressively and abusively, as the Member has.

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 an oral reprimand, a suspension between three and six months, and the imposition of terms, conditions or limitations that include two courses of instruction (one regarding classroom management and one regarding anger management) would be appropriate in this case. According to College Counsel, the overarching goals of any order of the Committee is to protect the public and to maintain high professional standards. In College Counsel’s view, the proposed penalty would achieve these goals while also meeting the guiding principles of specific deterrence, general deterrence and rehabilitation.

College Counsel submitted that there are several aggravating factors supporting the proposed penalty, and only one mitigating factor. The aggravating factors include the Member’s lack of interest or inability to take instructions and guidance from superiors; his lack of respect for students and appropriate teaching practices; his pattern of unprofessional and concerning behaviour; and his refusal to accept responsibility for his actions. According to College Counsel, the only applicable mitigating factor is that the Member had no prior disciplinary history at the College.

College Counsel briefly presented the Committee with four previous cases decided by the Discipline Committee in order to establish that the proposed penalty fell within a range of acceptable outcomes: Ontario College of Teachers v. Speakman, 2013 ONOCT 84; Ontario College of Teachers v. Towler, 2015 ONOCT 79; Ontario College of Teachers v. O’Shea, 2017 ONOCT 8; and Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15.

PENALTY DECISION

On July 24, 2018, the Committee made the following order as to penalty:

1. The Committee directs that the Member appear before the Discipline Committee, within 120 days of the date of the Discipline Committee’s Order, to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”):

2. The Committee directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of six 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 Committee directs the Registrar 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 resuming or commencing a Teaching Position, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding classroom management and anger management, with a focus on student sensitivity training, subject to the following conditions:

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

(ii) following review of the document noted at paragraph (i) above, each 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 each course practitioner 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 each course practitioner 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.

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 (in appropriate cases), and public protection. The Committee recognizes the principle that like cases should be treated alike. The penalty in this case falls with the range of penalties ordered in several similar cases before the Discipline Committee, as presented by College Counsel.

Oral Reprimand

The Committee finds that the Member’s repeated pattern of inappropriate conduct, despite the numerous supports and disciplinary measures taken by the Board, warrants a reprimand from his peers. The pattern of continuous yelling and multiple instances of inappropriate physical contact displayed by the Member is of concern to the Committee. His conduct caused students to feel frightened, intimidated, and anxious, and created a hostile learning environment. The reprimand will allow the Committee to directly address its concerns with the Member regarding his professional misconduct 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.

Six-Month Suspension

The Committee finds that a six-month suspension is reasonable and appropriate given the circumstances of the Member’s case. The suspension is proportionate to the serious nature of the Member’s misconduct and the duration is within a reasonable range based on other similar cases before the College’s Discipline Committee, as submitted by College Counsel.

In determining the appropriate duration of the Member’s suspension, the Committee carefully considered the jurisprudence presented by the College, as well as the mitigating and aggravating factors in this case. The Committee finds that the aggravating factors significantly outweigh the mitigating factor in this instance. Although the Committee recognizes that the Member has no prior discipline history with the College, this does not excuse his conduct. Members of the teaching profession are expected to treat students with respect and to provide them with a safe learning environment. The Member repeatedly did the opposite and his misconduct was serious.

The Committee was particularly concerned with the following aggravating circumstances. The Member’s behaviour formed a troubling patterns of disrespectful, unprofessional, and abusive behaviour. He continuously yelled at the students under his care for a period of almost year, despite the various supports put in place by Principal Jacobson and the Board to assist the Member in changing his teaching practices. The Member’s conduct was therefore not an isolated incident or momentary lapse of judgement. Similarly, the pattern of repetitive behaviour demonstrated the Member’s disinterest or inability to take instruction and direction from those willing to assist him. The Member’s continuous misconduct demonstrated a complete disregard for the various resources invested in attempting to assist and support him.

Further, the Member’s conduct was verbally and physically abusive. In addition to repeatedly yelling at the students under his care, he physically abused four students: he shoved Student Number 1 with his forearm, when the student tried to leave the Member’s class; he hit Student Number 2 over the head, grabbed him by the collar, and threw his backpack at him during a [XXX]; and, he grabbed Student Number 3 and Student Number 4 by the upper arm during the same [XXX]. The Member’s rough and aggressive interactions with these students are unacceptable. Teachers are expected to maintain composure with students at all times (especially during emergency situations), and to serve as a positive role model. The Member failed to meet these expectations.

The Member’s conduct demonstrated a lack of respect for students and appropriate teaching practices. While the Committee recognizes that teaching can be challenging and demanding at times, yelling and physical force are not appropriate forms of disciplines with students. Teachers are expected to interact respectfully with students and to model appropriate behaviour. The Member failed to meet these expectations.

Accordingly, the Committee finds that a six-month suspension is reasonable in this case and that is it proportionate to the Member’s misconduct. The suspension will serve as a specific deterrent to the Member and should cause him to reflect on the serious nature of his misconduct. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

Coursework

The Committee finds that the courses of instruction regarding classroom management and anger management will assist in the rehabilitation of the Member. This remedial coursework is responsive to the pattern of unprofessional behaviour demonstrated by the Member. The coursework is aimed at assisting the Member in making 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.

Date: January 16, 2019

Vicki Shannon, OCT

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

Shanlee Linton, OCT

Member, Discipline Panel