DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Joel Robert Lewsaw, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOEL ROBERT LEWSAW (REGISTRATION #197828)
PANEL: Diane Ballantyne, OCT, Chair Benoît Dussault, OCT Jonathan Rose
HEARD: May 17, 2019
Stephanie Sugar of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk Kirsty Niglas-Collins of KNC Law, for Joel Robert Lewsaw 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, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 14, 2018 (Exhibit 1) was served on Joel Robert Lewsaw (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for May 17, 2019.
The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Joel Robert Lewsaw is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (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 abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;1
(e) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(f) 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);
(g) 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
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Joel Robert Lewsaw is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Greater Essex County District School Board as a teacher at [XXX] School (the “School”) [XXX], Ontario [sic].
During the 2015-2016 academic year, the Member was a [XXX] teacher at the School.
During the 2015-2016 academic year, the Member provided [XXX] to students which contained content of a sexually explicit or other inappropriate nature. Attached hereto and marked as Exhibit “B” are copies of those [XXX].
During the 2015-2016 academic year, the Member created a class list which included nicknames or descriptions of the Students with derogatory and/or sexual overtone. Attached hereto and marked as Exhibit “C” is a copy of that class list.
On or about June 20, 2016 the Windsor-Essex Children’s Aid Society received a referral. Following interviews with students, staff and the Member, the Children’s Aid Society verified the child protection concern. The Society closed the file. Attached hereto and marked as Exhibit “D” is a copy of correspondence from the Children’s Aid Society dated August 5, 2016.
On or about June 21, 2016, a number of the Member’s students were interviewed by the School administration. Some students indicated that the Member made comments of a racial and sexual nature, including comments regarding the student’s sexual orientation and used words to the effect “finally coming out of the closet”. Attached hereto and marked as Exhibit “E” are copies of those student interviews.
In or around June 2016, Kyle Berard, the School Principal received email communication from a concerned parent regarding the Member’s conduct in the classroom and use of profane and/or offensive language in the presence of students. Attached hereto and marked as Exhibit “F” is a copy of the email communication dated June 23, 2016.
The Board suspended the Member for 15 days without pay which was subsequently reduced to eight days. The Member was required to complete a boundaries course and was not allowed to take students on field trips. Upon the Member’s return from suspension, the Member was transferred to another [XXX] school of the Board.
In 2006 the Member had another matter resolved by way of an agreement before the Investigation Committee. This matter was not referred to the Discipline Committee. The Member admitted the conduct, was cautioned by the Investigation Committee and undertook to complete coursework with respect to boundaries.
The Member has made positive contributions as a teacher since these events. Attached as Exhibit “G” is a copy of a letter from his principal dated February 5, 2019.
GUILTY PLEA
By this document,2 the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted this request.
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on May 17, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
Paragraphs 4-8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 6, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).
Paragraphs 6, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 4-8 of the Agreed Statement of Facts and Guilty Plea demonstrate 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).
Paragraphs 4-8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).
Paragraphs 4-8 of the Agreed Statement of Facts and Guilty Plea demonstrate that 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).
Paragraphs 4-8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of four months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.
direct 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) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom communication and boundaries subject to the following conditions;
(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(iii) the course (or courses) shall be completed no more than three months before commencing or returning to a Teaching Position.
(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.
PENALTY DECISION
In an oral decision rendered on May 17, 2019, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by the parties: Ontario College of Teachers v. Eltis, 2016 ONOCT 58, Ontario College of Teachers v. Fernandes, 2019 ONOCT 13 and Ontario College of Teachers v. Odjig, 2018 ONOCT 27.
The Committee finds that the Member’s comments which were of an inappropriate and racial nature, his use of inappropriately sexualized [XXX] and his use of profanity warrant a reprimand by his peers. Members of the profession are expected to maintain appropriate boundaries with students at all times, to act as positive role models and to create safe and supportive learning communities. The Member failed to meet these expectations by behaving in an offensive and insensitive manner. 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.
Given the Member’s inappropriate conduct, the Committee finds that a suspension of four months is reasonable and appropriate. The Committee also notes that the Member has already served unpaid suspension through the Board. The Committee finds that the suspension is necessary as a specific deterrent, and the recording of the suspension on the Register will serve as a general deterrent to other members of the teaching profession.
The Committee notes that the Member was required to complete a boundaries course by the Board. The Committee finds that the course of instruction regarding classroom communication and boundaries will further assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: May 23, 2019
______________________________
Diane Ballantyne, OCT Chair, Discipline Panel
______________________________
Benoît Dussault, OCT Member, Discipline Panel
______________________________
Jonathan Rose Member, Discipline Panel