DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Armstrong 2019 ONOCT 48

Date: 2019-04-08

DECISION ON FINDING AND REASONS FOR DECISION

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

Robert Armstrong, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ROBERT ARMSTRONG (REGISTRATION #165530)

PANEL: Claudia Patenaude-Daniels, OCT, Chair

Ann Ciaschini, OCT

Tom Potter

HEARD: April 19, July 3, December 18-19, 2018

Andrew Matheson of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

John Navarrete of Neuberger & Partners LLP, for Robert Armstrong

Robin McKechney, Erica Richler and 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 April 19, 2018, at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated April 8, 2015 was served on Robert Armstrong (the “Member”) requesting his presence on April 22, 2015 to set a date for hearing, and specifying the allegations. The hearing was subsequently set for April 19, 2018 and continued on July 3 and December 18-19, 2018.

The Member was in attendance at the hearing and had legal representation.

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

The College alleges that the Member committed professional misconduct principally in relation to three separate incidents between March 2011 and May 2013.

First, the Member is alleged to have inappropriately used physical force on a [XXX] student, Student 1, in his [XXX] grade class. While Student 1 was seated at a computer, it is alleged that the Member grabbed or forcibly removed the headphones from Student 1’s head. It is also alleged that the Member then used force and picked Student 1 up out of his chair by the elbow.

Second, the Member is alleged to have communicated in an inappropriate manner with his principal, [XXX]. After receiving an email from [XXX], it is alleged that the Member aggressively confronted [XXX] in the schoolyard in the presence of students. He pointed his finger in her face and left while stating “this isn’t the end of this”.

Third, it is alleged that the Member inappropriately communicated with [XXX] (Teacher A), his fellow teacher. The Member is alleged to have sent inappropriate emails questioning his colleague’s professional competence. It is also alleged he aggressively confronted [XXX] in the staff room and charged across the room at her.

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 finds that the Member engaged in professional misconduct.

THE ALLEGATIONS

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

IT IS ALLEGED that Robert Armstrong 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

2. Robert Armstrong (the “Member”) is a member of the Ontario College of Teachers.¹

3. At all material times, the Member was employed by the Peterborough Victoria Northumberland and Clarington Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Peterborough, Ontario.

4. At all material times, Student No. 1 was a male student identified with [XXX] at the School. Student No. 2 was a female student in the [XXX] Program.

5. At all material times, Teacher A was a [XXX] teacher at the School.

6. Between March 1, 2011 and March 31, 2011, the Member grabbed Student 1’s headphones off his head and pulled him out of his chair by the arm.

7. Between October 1, 2012 and May 31, 2013, the Member, while discussing his concerns with Teacher A and the School Principal, on several occasions spoke unprofessionally to them.

8. Between October 1, 2012 and May 31, 2013, the Member made repeated phone calls to Student No. 2’s parents that were harshly critical of Teacher A’s abilities as a teacher and the Board’s failure to provide [XXX] support to Student No. 2.

THE MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

PROCEDURAL RULING ON REQUEST FOR ADJOURNMENT

Before dealing with the substantive evidence and findings on the merits, the Committee will provide its reasons for denying the Member’s request for an adjournment on the July 3, 2018 hearing date.

Background and Decision

The hearing in this matter was originally scheduled for April 19 and 20, 2018. On April 19, the Member’s Counsel requested an adjournment of the April 20 date as a result of an unexpected and unavoidable matter which required him to appear before the Superior Court of Justice. College Counsel did not oppose this request and the hearing was adjourned to July 3, 2018. On July 3, 2018, Member’s Counsel requested an adjournment of the hearing, or adjournment of his cross-examination of the two witnesses who were to testify on that date. After hearing submissions, which will be detailed below, the Committee denied the Member’s request for an adjournment and the hearing proceeded.

Submissions of Member’s Counsel

The Member’s Counsel requested an adjournment to enable the Member to attempt to locate a document that counsel submitted may be essential to his cross-examination of two witnesses – Ron McNamara and [XXX].

The day before the hearing recommenced on July 3, 2018, the Member informed counsel that he had been interviewed by Mr. McNamara on April 5, 2013 at 2:30 pm in relation to his alleged harassment of [XXX]. The College disclosed notes from an earlier April 5, 2013 meeting between Mr. McNamara and [XXX], but notes from the later meeting with Member were not disclosed.

However, the Member himself had been provided a copy of these notes by the Board. On July 3, 2018, he located the first page of several pages of notes and provided it to his counsel. The remaining pages were not located by the Member in time for the hearing on July 3. Counsel explained that the Member had just completed a move and consequently was not able to locate the rest of the document.

Member’s Counsel submitted that it was important for him to obtain the document. He argued that it may impact how he cross-examined [XXX] and it would certainly impact how he cross-examined Mr. McNamara. He said it may also impact the Member’s decision whether or not to testify. He submitted that any delay arising from the adjournment would fall at the feet of the defence. He submitted that the hearing could hear evidence in chief from the two witnesses, and he asked that only his cross-examination be adjourned.

Submissions of College Counsel

College Counsel argued that the hearing should not be adjourned. He highlighted concerns with delaying the case any further. Counsel argued that the matter was not a disclosure issue that fell at the feet of the College. The document in question had never been provided by the school Board to the College. The College attempted to obtain it from Mr. McNamara but he did not have access to it because he was no longer employed by the Board.

College Counsel emphasized that there was no basis to adjourn because the defence needed more time to look for a document that they themselves have. There is an obligation to be diligent in gathering records. The fact of the relevant meeting was known throughout the history of the prosecution because the meeting was referenced in a June 20, 2013 letter from Mr. McNamara to the Member. That letter was disclosed from the beginning of the prosecution. College Counsel submitted that there was no adequate explanation for why the document was not located earlier and why its absence was coming up at the eleventh hour.

College Counsel submitted that Member’s Counsel would have been aware that Mr. McNamara would be called as a witness as of June 11, 2018 at the latest.

Reasons for Decision

The Committee has a discretionary authority to grant requests for adjournment under the Statutory Powers Procedure Act and Rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. Rule 14.01(2) provides that the Committee may consider one or more of the following factors:

a. the sufficiency of the reasons advanced for the request to adjourn;

b. the timeliness of the request;

c. the resources of the Committee;

d. any prejudice to the parties;

e. whether any adjournments have been granted previously;

f. the consent of the parties; or

g. any other relevant factor.

In considering adjournment requests, the Committee is required to balance competing interests. In the request considered here, there is an interest in having the matter heard and resolved expeditiously. This proceeding is concerned with matters dating from 2011 to 2013 and a Notice of Hearing which was issued in 2015. There was already an adjournment of one of the hearing days at the request of the defence. However, the interest in concluding the matter must be balanced with the Member’s interests in having a fair hearing. The Member is entitled to a fair process and has a right to fully and vigorously defend himself. Those interests include the right to test the evidence of the College’s witnesses in cross-examination.

After carefully considering the submissions of the parties, the Committee denied the Member’s request for an adjournment. The Committee was not satisfied that the reasons advanced were sufficient to grant the request. In particular, the Committee accepted that the fact of the April 5, 2013 meeting between the Member and Mr. McNamara was apparently in the material provided by the College to the Member from the outset of the prosecution. The fact that Mr. McNamara was going to be called as a witness was known to the Member at least three weeks before the July 3, 2018 hearing date. The Committee was not satisfied that the defence acted with reasonable diligence in its efforts to secure the material in issue before the July 3, 2018 hearing date. There is an interest in having matters before the Committee completed in a timely way, and this matter had been outstanding for a lengthy amount of time and deals with conduct from 2011 to 2013. The matter had previously been adjourned at the request of the defence.

The Committee was not satisfied that the absence of the document would prejudice the Member’s ability to cross-examine [XXX] or Mr. McNamara. The Member was present at the meeting in issue and the contents of the discussion were known to him.

Balancing all of these factors, the Committee declined to exercise its discretion to grant the adjournment sought.²

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 College called five witnesses. [XXX] testified about an incident between the Member and her [XXX] child, Student 1. She testified that that Student 1 came home from school very upset and told [XXX] that the Member hurt him by pulling headphones off his head and that he received a scratch. [XXX] explained that Student 1 had a visible scratch on his face. Student 1 was very anxious for months afterwards

[XXX] was in her final semester of a college social work program and was doing a practicum placement with another student with [XXX] at the School. She testified that on March 8, 2011, she was with her student in the school library near the end of the school day while the Member’s class was in the library watching a movie. Her student and Student 1 went to play games on the library computers. After the movie ended, the Member’s class started leaving the library. Student 1 remained at the computer with his headphones on. [XXX] testified that the Member aggressively grabbed the headphones off Student 1’s head, grabbed Student 1’s elbow and lifted him out of his chair, yelling at him to return to class. [XXX] said she was shocked by what she observed and reported it to Board authorities and the Children’s Aid Society.

[XXX] was the principal at the School starting in January 2012. She testified that on May 3, 2013, she witnessed the Member exiting the male students’ washroom around the time of the morning bell. She sent the Member an email reminding him that he should be using the staff washroom rather than the students’ washroom. Later that day, [XXX] was on yard duty at recess. The Member stormed out of the school and aggressively confronted her in the schoolyard where there were students nearby. The Member pointed his finger in her face and departed saying “this isn’t the end of this”. [XXX], another teacher on the schoolyard, saw the interaction and came over to ask [XXX] if she was alright. This incident significantly upset [XXX]. She quickly called Ron McNamara, the Board’s superintendent in charge of human resources, who advised her to gather another teacher and inform the Member that he was to return home immediately.

[XXX] testified that he witnessed the interaction between the Member and [XXX] in the schoolyard. He said that the Member appeared “upset”. He confirmed that he went to check on [XXX].

[XXX] (Teacher A) was the [XXX] teacher at the School. She testified that she had known the Member for some time and was on good terms with him for much of that time. The Member would on occasion make inappropriate remarks and [XXX] would let him know that he might get himself in trouble for saying certain things. Their relationship deteriorated in the fall of 2012 and winter of 2013. Student 2 was a student with [XXX] in the Member’s class. Student 2 in previous years spent an hour a day with [XXX] in the [XXX] Program. In 2012-2013, Student 2 was no longer in the [XXX] program, but she was seeing [XXX] for help at the end of the day, three days per week.

In October 2012, [XXX] said the Member aggressively confronted her twice. The Member later sent an email apologizing. On November 9, 2012, the Member sent an email to [XXX], blind copying [XXX], indicating that a staff member assigned to yard duty had inappropriately been on their phone. [XXX] was the only person assigned to pavement duty at the time. She felt her professionalism was attacked. On January 25, 2013, the Member sent her an email indicating he was keeping a log of Student 2’s attendance with [XXX]. [XXX] again felt her professionalism was being attacked. On February 6, 2013, the Member became upset with [XXX] in the staff room and yelled at her. He charged across the room at her and only stopped because another teacher intervened.

Ron McNamara was the Board’s superintendent in charge of human resources. He testified about receiving complaints in relation to the incidents involving Student 1, [XXX] and [XXX]. He was qualified as a participant expert on consent and provided evidence to the panel about the relevant standards of practice and Board policy.

The Member testified in his own defence. He was the only defence witness called. The Member described his path to teaching. After working as a miner in Northern Ontario, he became an accountant in Toronto and worked in several institutions in differing roles. At age 34, he decided he wanted to become a teacher. He taught in Toronto and then in Peterborough with the Board starting in 2000. He moved to the School in 2003 or 2004. He volunteered in [XXX] and [XXX] at the School and was involved in his community. He has retired from teaching.

The Member did not deny much of the substance of the allegations, but disputed important details offered by the College’s witnesses. In particular, he said that he did not violently rip the headphones off Student 1’s head. He said he removed them and guided Student 1 off the computer because he (the Member) was concerned that another student in his class might run away if the Member did not return to his class immediately. He denied that he was angry or aggressive in his communications with [XXX] and [XXX]. He said that he did not communicate with them in an unprofessional manner.

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. He submitted, at its core, the case centered around three incidents. All three demonstrate the Member’s lack of respect for the dignity of a student with [XXX], a principal and a fellow teacher. The conduct involved a pattern of emotional behaviour that was disrespectful and negatively affected the individual members of the school community and all members of the community at large.

College Counsel pointed to the expert evidence of Mr. McNamara as establishing that the Member’s behaviour constituted breaches of the applicable polices and principles. College Counsel reiterated the evidence given by each of the witnesses. He submitted that the College’s witnesses gave their evidence in a credible manner and were not undermined in cross-examination.

College Counsel argued that the Member was not credible in his evidence in relation to the incident with Student 1 in the library. He argued that the Member gave two versions of the story, one in 2011 when responding to a Board investigation, and a second version in 2018 in his testimony. The 2018 version included self-serving details and was not credible.

College Counsel argued that even on the Member’s version of the incident with Student 1, the Member acknowledged using physical intervention and force with Student 1. Counsel pointed to the expert evidence of Mr. McNamara, who testified that it is very rarely appropriate to use physical intervention with a student. Physical intervention ought to be only used where there is an imminent risk of harm. No such risk existed in the case here. The Member suggested that he was concerned one of his students might wander out of the school and that was a safety concern. College Counsel submitted this was mere speculation. He pointed to Ontario College of Teachers v. O’Shea, 2016 ONOCT 84 in support of the proposition that the application of physical force to a student is almost never justified. College Counsel cited a particular passage in O’Shea, where the Committee said: “It is never justifiable for a teacher to use physical force on a student and it is contrary to what is expected of the members of the profession.” Physical abuse is not about criminal assault; it is concerned with unjustified physical contact. In O’Shea, as here, there was an independent student placement witness to the physical abuse with no apparent interest in the outcome of the case.

SUBMISSIONS OF MEMBER’S COUNSEL

The Member’s Counsel argued that the Committee should not find that the Member committed professional misconduct.

The Member’s Counsel submitted that the incident with Student 1 was the most problematic. He pointed to the passage from O’Shea that was referenced by College Counsel: “It is never justifiable for a teacher to use physical force on a student and it is contrary to what is expected of the members of the profession.” Member’s Counsel argued that this was not actually correct, because the Committee heard expert evidence from Mr. McNamara that physical intervention can be used in rare or exceptional cases. It can be used in emergencies, cases where there is a safety risk or a risk of imminent harm. He agreed with College Counsel’s submission that [XXX] was an independent witness but argued that her lack of experience may have led her to misinterpret the appropriateness of the force used by the Member with Student 1. Member’s Counsel urged the Committee to accept the Member’s explanation for his use of physical intervention with Student 1 – he was in a dynamic situation with another student in his class who was a flight risk and he reacted. Member’s Counsel accepted that even if the Committee found that the Member’s version of events was true (gently removing the headphones), the Committee might conclude that was professional misconduct.

In relation to the incident with [XXX], Member’s Counsel pointed out that there was no evidence the Member used profanity, physical force, or that he was enraged. He argued that it was an argument between an employee and an employer. The Member admitted he could have handled the situation better. Member’s Counsel pointed to the evidence that the Member was a large man with a booming voice and those facts might lead other individuals to misinterpret interactions with him.

In relation to the Member’s interactions with [XXX], Member’s Counsel made similar arguments. He argued that there was a line between professional colleagues having disagreements about issues in the workplace and professional misconduct. Counsel argued that two professionals can argue with each other, even raising their voices, but that does not rise to the level of professional misconduct.

REPLY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel in reply submitted that the Committee should not accept Member’s Counsel’s submissions that the Member did not intend certain actions as aggressive acts and did not mean to commit professional misconduct. College Counsel argued that, unlike criminal prosecutions, intent need not be proven in the professional discipline context. It is no defence to argue that “maybe he should have known better.”

In relation to Member’s Counsel’s arguments regarding the incidents with [XXX] and [XXX], College Counsel submitted that the notion that they were merely arguments between two colleagues should be rejected. He pointed to the principle that those within the educational community must treat each other with respect and dignity.

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 the parties, the Committee found that the Member engaged in some, but not all, of the alleged acts of professional misconduct. The Committee found that the Member committed professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(15) and 1(18). The Committee did not find the Member committed professional misconduct contrary to Ontario Regulation 437/97, subsection 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 findings of professional misconduct.

Factual Findings

There was no dispute that the Member was employed by the Board and a teacher at the School at the relevant times alleged in the Notice of Hearing. Similarly, there was no dispute that [XXX] (Teacher A in the Notice of Hearing) was a [XXX] teacher at the School or that Student 1 and Student 2 were students in the Member’s class at the relevant times.

The Notice of Hearing contains three remaining factual allegations that were in dispute at the hearing:

6. Between March 1, 2011 and March 31, 2011, the Member grabbed Student 1’s headphones off his head and pulled him out of his chair by the arm.

7. Between October 1, 2012 and May 31, 2013, the Member, while discussing his concerns with Teacher A and the School Principal, on several occasions spoke unprofessionally to them.

8. Between October 1, 2012 and May 31, 2013, the Member made repeated phone calls to Student No. 2’s parents that were harshly critical of Teacher A’s abilities as a teacher and the Board’s failure to provide [XXX] support to Student No. 2.

The evidence called by the parties and the submissions focused primarily on three incidents. First, the headphone incident alleged in paragraph 6 of the Notice of Hearing. Second, an alleged incident of unprofessional communication between the Member and the School principal in May 2013, alleged in paragraph 7 of the Notice of Hearing. Third, a series of unprofessional communications between the Member and [XXX] between October 2012 and February 2013, also alleged in paragraph 7 of the Notice of Hearing.

The factual analysis below will analyze these three incidents in sequence below. Fourth and finally, we will consider the allegation in paragraph 8 of the Notice of Hearing relating to alleged critical comments about [XXX] made by the Member to Student 2’s parent.

1. The Member grabbed Student 1’s headphones off his head and pulled him out of his chair by the arm

The Committee finds that the Member grabbed Student 1’s headphones off his head and pulled him out of his chair by the arm, as alleged at paragraph 6 of the Notice of Hearing.

Evidence on this issue came from three witnesses.

[XXX]

Student 1’s [XXX] mother, [XXX], provided background about Student 1. She was Student 1’s [XXX]. [XXX] testified that Student 1 had [XXX]. She had received a tentative diagnosis of [XXX] and indicated that Student 1 showed signs of [XXX]. He had many [XXX] and was very [XXX]. He exhibited issues with [XXX] and understanding [XXX]. [XXX] acknowledged in cross-examination there were occasions at home where [XXX] or her husband wanted Student 1 to do something and they got no response. She acknowledged that Student 1, at the time of her testimony in 2018, had little to no recall of the incident in 2011.

At the time of the incident with the Member in March 2011, Student 1 was in the Member’s [XXX] grade class at the School and was [XXX] or [XXX] years old. However, in [XXX] estimation, Student 1 was operating [XXX] at approximately a [XXX] level. In the Member’s class, Student 1 had a [XXX] [XXX] working with him.

[XXX] testified that Student 1 came home after school and reported an incident he had with the Member. Student 1 was very upset and told [XXX] that the Member hurt him. [XXX] said that Student 1 had a visible scratch on him. Student 1 conveyed to her that he had his headphones on, that the Member asked him to remove them, Student 1 did not, and the headphones were pulled off his head and he got scratched by the earphones. Student 1 said that the Member did not like him and yelled at him.

[XXX] said that Student 1 was very fearful and anxious about the situation and talked about it continuously for several months. He was removed from the Member’s class within days of the incident.

[XXX]

[XXX] was a social service work student at Fleming College doing a placement with one of the students (“Student A”) at the School on March 8, 2011. During the school day, [XXX] and Student A travelled to another nearby school (“School B”) for [XXX]. They would return to the School at the end of the school day and do schoolwork in the library. On March 8, while [XXX] and Student A were seated at a table in the library, the Member brought his class into the library to watch a movie. Student A pointed out Student 1 as the class entered and indicated that they knew each other. Student 1 came over to the table where [XXX] and Student A were seated. [XXX] said that Student 1 needed permission to sit with them at the table. An EA in the room nodded in Student 1’s direction, so Student 1 continued to sit with [XXX] and Student A. The Member also asked [XXX] if Student 1 was bothering her and Student A. She indicated to the Member that Student 1 was not bothering them.

While the film was playing, Student A became fidgety and [XXX] told him he could go play games on the computer instead of watching the movie. Student A proceeded to do so. Student 1 also got up and went over to the EA, had a discussion with her, and then went to the computer beside Student A. [XXX] assumed that Student 1 had asked the EA for permission to use the computer. [XXX] saw the EA leave the room after Student 1 went to the computers.

Eventually, the movie ended and all of the students began to head back to class. [XXX] said that Student 1 did not seem to notice that the other students were heading back to class. The Member asked another student in the class to tap Student 1 on the shoulder and get his attention to go back to class. Before the student made it all the way to Student 1, the Member told the student “never mind” and told him to head back to class.

[XXX] said that she then observed the Member walk over to Student 1 and pull the headphones off his head, pulling from the band over the top of the head. The headphones were the type that cup the entire ear like an earmuff with a band over the head. The movement also resulted in Student 1’s glasses being knocked off his face. [XXX] testified that the removal of the headphone was aggressive, particularly insofar as they caused the glasses to be knocked off Student 1’s face. [XXX] said that Student 1 appeared shocked and wide-eyed. She said that the Member then grabbed Student 1 out of his chair into a standing position, not giving him enough time to stand on his own. [XXX] said that a great deal of force was used by the Member to accomplish this. She said that the Member yelled at Student 1 about how he (the Member) had told him (Student 1) not to do that and to shut off the computer and get back to class. Student 1 turned off the computer and ran out of the library.

[XXX] said that she was shocked and could not believe what she had just witnessed. She sat down with Student A and told him that what they had witnessed is never okay, and that if anyone ever did that to him or another student, he needs to tell an adult he trusts.

After the incident, [XXX] immediately travelled back to School B and spoke to an EA. She typed up notes of her observations. These notes were entered as an exhibit at the hearing (Exhibit 5). They are essentially consistent with the evidence she provided orally at the hearing.

After typing her notes, [XXX] and the EA spoke with the principal of School B. The principal of School B called the principal of the School, but [XXX] was not included in this conversation. [XXX] left School B and immediately filed a report with the Children’s Aid Society. The Children’s Aid Society subsequently conducted an investigation.

The Member

The Member testified that he enjoyed having Student 1 as a student in his class and explained that before the incident at issue, they had a good relationship. The Member helped teach Student 1 how to [XXX] on a school trip and Student 1 was his [XXX] during the daily physical education period.

The Member denied ripping or yanking the headphones off Student 1’s head. He denied yanking Student 1 out of his seat.

The Member explained that on the day his class attended the library to watch the video, the [XXX] who was supposed to come to help Student 1 did not arrive on time. There were two [XXX] who had responsibility for Student 1 and they would switch at approximately 3:15 pm. The [XXX] who accompanied Student 1 to the library had to leave at that time. The replacement [XXX], [XXX], did not arrive to take responsibility for Student 1. At about 3:20 or 3:25 pm, the video was over and it was time to leave. The other students lined up to leave the library. The Member said that Student 1 could see the other children lining up to leave because they were only seven or eight feet from him. The Member said, “Come on. Let’s go, [Student 1]”. Student 1 did not move. So the Member sent another student over to get Student 1’s attention. Student 1 still did not move. The Member sent the other student back a second time and was again unsuccessful at getting Student 1 to move.

The rest of the class started filing out of the library. The Member testified that he said, “[Student 1], come on. We must go.” [XXX] had still not arrived. The Member was starting to grow concerned. He pressed the button on the wall to call the office, but there was no reply. The Member testified that he was thinking about a situation that happened a few weeks earlier. A student in his classroom “took off” before the bell on more than one occasion. The Member was worried that student might try to sneak off before the bell if he did not return to the classroom. It was the end of the day when there were school buses and traffic in front of the school, and the Member was worried about that student’s safety.

The Member decided that he had to act. He saw [XXX] in the library, but did not want to leave her in charge of Student because she was very young, dressed like a “goth” and was texting or playing on her cell phone. He thought she was a teenager. The Member decided to count to 10 in his head. He counted to 15 and [XXX] had still not arrived.

The Member said he walked over to Student 1 and “raised” the headphones off his head. He “took” Student 1 by the elbow and “raised” him out of the chair. Student 1’s glasses, which were askew, fell and hit the floor. The Member told Student 1 he was going to lose his computer privileges for the next day.

The Member filed a letter he testified was provided to him by [XXX] (Exhibit 38). In the letter, [XXX] indicates that on the day in question, she was late in joining the class to [XXX] Student 1. She said that when she met with Student 1 later that day, Student 1 told her that the Member was mad at him because he “wouldn’t get off the computer” and that he could not have computer time the next day.

As a result of the incident, the Children’s Aid Society and Board investigated and the Member had to complete a classroom management and anger management course.

In cross-examination, the Member resisted the suggestion that he was frustrated that the [XXX], [XXX], had not attended on time. He acknowledged that Student 1’s refusal to get off the computer was inconvenient. He agreed that there was no situation of danger; Student 1 was not presenting a threat to anyone or any property. Student 1 was calm and was not agitated.

The Member was adamant that he did not yell at Student 1. He also resisted College Counsel’s suggestion that Student 1 did not realize that the class was leaving because he had his headphones on. The Member said that it obvious that the other children were leaving based on where Student 1 was sitting.

The Member acknowledged there were inconsistencies between the evidence he gave in his testimony and a statement he prepared with his union representative in 2011.

The Member acknowledged that instead of removing the headphones from Student 1’s head, he could have:

• Gone to the side of Student 1 to gesture at him without touching him

• Rapped his knuckles on the computer table to get Student 1’s attention

• Tapped on the computer monitor to get Student 1’s attention

• Turned off the computer

• Tapped on the back of the chair

The Member acknowledged that he did not give Student 1 the opportunity to respond to verbal direction after removing the headphone and before picking him up from the chair. He acknowledged that he was a little frustrated with Student 1. He also admitted that the removal of the headphones caused Student 1’s glasses to fall. He was not aware of any injury.

The Member acknowledged that the use of physical force is limited to only exceptional circumstances. He maintained that he was fearful that the other student might run away from the classroom.

Credibility and Findings

There is no dispute that the Member removed the headphones from Student 1’s head and picked him up out of the chair using his elbow. There is also no dispute that the removal of the headphones resulted in Student 1’s glasses falling off of his face. [XXX] later observed a scratch on Student 1’s face.

There are essentially two disputes in relation to this incident. First, the degree of force which the Member used to remove the headphones and pick Student 1 up out of the chair. Second, whether the use of any force, including the force the Member admitted to, was justified. This second question will be addressed in the Legal Conclusions section with reference to the expert evidence received from Ron McNamara. The first question will be addressed here.

The Committee finds that the Member aggressively grabbed the headphones off Student 1’s head and aggressively picked him up out of the chair. To the extent that the versions offered by [XXX] and the Member differ, the Committee prefers the version of events offered by [XXX].

[XXX] testified in a forthright manner. At the time of her observations, she was an independent observer with no prior relationship with the Member or any of the parties. She did not have a motivation to fabricate her evidence, and she was unshaken in cross-examination. [XXX] believed what she saw was wrong and took immediate steps to report it. The Committee found her to be a credible and believable witness who had the ability to directly observe the events in question as they occurred. She was firm in her evidence that she saw the Member aggressively remove Student 1’s headphones and then aggressively pick him up out of his chair.

The Member denied that he used aggression in removing Student 1’s headphones and picking him up out of the chair. He attempted to justify the use of force on the basis of a concern that another student in his class would flee from the classroom. The Member’s account was simply not believable. The Member could have taken a number of different steps to control the situation, for example by asking [XXX] to keep an eye on Student 1 while he went to make arrangements for his class. More significantly, the Member could have turned off the computer or attracted Student 1’s attention using a variety of methods without touching him. It is apparent that the Member grew frustrated by Student 1’s disobedience – he admitted as much in cross-examination – and that frustration manifested in the unacceptable way that the Member removed Student 1 from the computer. The Member’s self-serving evidence attempted to minimize and justify his conduct. The Committee rejects the Member’s evidence in this regard and finds that it includes justifications and minimizations.

The College has proven this allegation on the balance of probabilities.

2. Unprofessional communication with [XXX]

The Committee finds that the Member communicated with [XXX] in an unprofessional manner, as alleged at paragraph 7 of the Notice of Hearing. The Member failed to treat [XXX] with respect and dignity.

Evidence on this issue came principally from three witnesses.

[XXX]

[XXX] became the principal at the School in January 2012, after serving as a principal in other schools since 2003. She worked at the School until June 2013, when she retired. In her evidence, [XXX] described an incident with the Member in the schoolyard that occurred on May 3, 2013.

First, [XXX] provided some background about her interactions with the Member over the course of that day. Before the morning bell, [XXX] was standing at the entrance doors to the school supervising students as they entered the school. She observed the Member exit the male students’ washroom, which was in proximity to the entrance doors for junior students.

Subsequently, [XXX] sent the following email message to the Member (Exhibit 10), which is marked as having been sent at 10:34 am:

Hello Rob,

This morning, at bell time, I watched as you exited the boys’ washroom. I had been standing in the hallway for a few minutes as the students were entering and didn’t see you go in, so I’m deducing you had been in there for a few minutes.

If you are using the washroom for personal use, I must insist that you limit your use to the staff washroom, as it’s not appropriate to do so.

Feel free to see me if you wish to discuss.

Thanks,

[XXX]

[XXX] testified that she did not address the issue with the Member in person at the time she made the observation because there were students milling about and it was not the proper time to address it. She saw the Member’s use of the students’ washroom as an issue and wanted to address it with him, and saw email as the quickest way of doing so. She had also previously addressed another matter with the Member and said that he had become agitated. She saw sending an email as a way to potentially avoid a confrontation.

At lunchtime, [XXX] was supervising students in the schoolyard on yard duty. At about 12:50 pm, she saw the Member exit the building and could tell that he was quite angry. He had a stiff posture and a scowl on his face. He walked directly towards her, got very close to her and said “I got your note”. The Member was waving his finger at her and pointed it very close to her face. He was very agitated. [XXX] testified that she was shocked and surprised because her email was not a discipline issue. She just did not want the Member using the students’ washroom.

[XXX] said that she made several gestures trying to get the Member to back off, but he did not. He was hunched over, very close to her and his voice was raised. His tone was very angry. [XXX] could not recall exactly what the Member said. However, [XXX] did recall that the Member concluded the conversation by saying something like “You haven’t heard the end of this”, before turning around and walking back into the school.

[XXX] recalled looking around the schoolyard. She said that her main concern was that she wanted the Member to calm down and take the confrontation away from the students.

[XXX] said that [XXX] came over to her and asked her if she was all right. [XXX] replied that she was not. [XXX] went to the office and realized that she was very shaken up. She knew she had to call the Board to report what had happened. After reaching the secretary, she burst into tears. Eventually, she was able to report to Ron McNamara, the Board’s superintendent of human resources, what had happened.

Mr. McNamara told [XXX] to take another staff member and inform the Member that he was to go home and was suspended until further notice. [XXX] accompanied [XXX] to relay this to the Member. Upon informing the Member of the suspension, [XXX] paraphrased what the Member said to [XXX]: “Do you know what this woman has done? She is reprimanding me for using the boys’ bathroom. This is ludicrous.”

The Member left the school. [XXX] typed notes of the day’s events and sent them in an email to Mr. McNamara (Exhibit 11).

[XXX] testified that she did not feel like she was treated with respect and dignity by the Member during the interaction in the schoolyard.

In cross-examination, [XXX] acknowledged a significant height difference between her and the Member. She agreed that the Member sometimes used a booming voice. She agreed she did not deal well with conflict. However, [XXX] was firm that she did not misperceive the interaction with the Member or overreact in her response to it.

[XXX]

[XXX] testified that he was on yard duty from 12:40 to 1:00 pm on May 3, 2013. From the far side of the yard, about 50 yards away, he saw the Member and [XXX] in an interaction. The Member was facing towards him and [XXX] was facing away from him. He saw the Member finger pointing in [XXX] direction. [XXX] said that the Member looked upset. [XXX] walked towards the pair, as it was the end of the lunch hour. By the time he made it across the yard, the Member had turned around and walked toward the school. [XXX] said that he asked [XXX] if she was all right because she looked quite upset. [XXX] responded that she was not. [XXX] said that [XXX] was shaky and flushed in the face.

In cross-examination, [XXX] agreed with counsel that the Member was a big man and that he sometimes had a booming voice. He agreed that the member can have a big presence. He said that there were students within about 10 yards of the Member and [XXX]. [XXX] also acknowledged that around the time of the incident, there were some concerns within the school about the administration, specifically relating to [XXX].

The Member

The Member testified that on the day of the incident with [XXX], he lost track of time and, just before the morning bell, he had a bathroom emergency. He was on a diuretic medication. The staff washroom was about 400 feet away and the students’ washroom was closer. He looked in the male students’ washroom to make sure there was no one inside and then used the washroom. While inside, his belt buckle broke. It took a few minutes to fix it. By the time he exited the washroom, [XXX] was outside the washroom. She did not say anything to him.

When the Member received [XXX] email, he found it unnecessary, unkind and offensive. He felt like [XXX] was demeaning him. He was not a new teacher. He understood the risk of using the bathroom. The Member decided that he wanted to go and speak to [XXX]. He looked out the window and saw her in the schoolyard. He thought that it was as good a time as any and went outside to speak to her.

The Member denied [XXX] version of events. He testified that he was not angry, red in the face, and did not point a finger in [XXX] face. He said that as he was leaving the building, he reminded himself to speak in a low tone and to be polite.

The Member said “I got your note.” [XXX] did not seem to respond. She just glared at him. He said that the email was unnecessary and unkind. No students were nearby. Ms. [XXX] did not respond. The Member felt like [XXX] was targeting him, so he took a step back, pointed to her and said “this isn’t the end of this.” He was a meter or more away from [XXX] when he made this gesture. He turned around and went into the school.

In cross-examination, the Member agreed that there were students within 10 yards of himself and [XXX]. He agreed that his feelings were hurt by [XXX] email. He felt humiliated and offended. He maintained that he had no intention of offending [XXX]. He agreed that [XXX] made a “back-off” gesture towards him. He acknowledged that the height and size difference between himself and [XXX], a smaller person, may lead to an impression that the bigger person is “looming” over the smaller person. The Member felt that [XXX] pre-empted him calling her to account for her email by having him disciplined for his conduct in the schoolyard.

Credibility and Findings

There is again a large degree of overlap between the evidence of [XXX], [XXX] and the Member on this issue.

There was a lengthy examination on the reasons for the Member’s attendance in the bathroom and whether or not it was appropriate. The Committee finds that the reasons underlying [XXX] email to the Member on May 6, 2013 are largely immaterial. The substance of this issue concerns the Member’s behaviour once he received the email. The Member may have had a legitimate reason to be upset that [XXX] emailed him about the use of the washroom. The issue is that he confronted her in the schoolyard.

All of the witnesses consistently described that the Member exited the school, approached [XXX] within 10 yards of students, pointed his finger at her on at least one occasion, and departed with words to the effect of “this isn’t the end of this”. The Member agreed [XXX] made a “back-off gesture”.

The extent of the disagreement is about the degree of anger or aggression the Member used in his approach to [XXX] and whether he failed to treat her with respect and dignity. [XXX] maintained that the Member was angry and aggressively approached her. [XXX] said that the Member looked upset. The Member said that he was composed and was not angry or aggressive.

To the extent of this disagreement between the evidence of [XXX] and the Member, the Committee prefers the evidence of [XXX], which is largely supported by [XXX], and rejects the evidence of the Member. The Member’s version of events was less believable. He testified that, while composed, he spotted [XXX] out the window and decided to have a chat with her. The Committee finds it unlikely that a person who was composed and who was not angry, would go outside and talk to someone on a playground full of children rather than wait until that person was back in the school.

The Committee finds that the evidence is more consistent with the Member seeking out a confrontation. The Member testified that he felt wronged by [XXX] email to him. It is clear from the evidence that the Member was sensitive to criticism of his professional competence. It is clear that he was very upset that [XXX] sent him an email advising him against using the students’ washroom without understanding the reasons why he was using the washroom. This sensitivity to criticism also animated his behaviour with [XXX], as will be explained in the section below. The Member’s concern about critique of his professional competence is understandable. However, despite his concerns about how others were treating him, it is clear that the Member paid little attention to how his behaviour affected those around him. It was his decision to leave the school and confront [XXX]. His attempts to minimize his degree of frustration and anger were not convincing; they were at odds with the evidence of [XXX] and [XXX], and the Committee rejects them.

The Committee accepts [XXX] evidence that the Member was angry, aggressive and pointed his finger in her face. She testified in a forthright and credible way and her evidence withstood cross-examination. Her evidence that she was shaken up was confirmed by the evidence of [XXX] and her immediate correspondence with Ron McNamara. [XXX]’s testimony confirmed that the interaction between the Member and [XXX] was more in line with [XXX] version of events. [XXX] said that the Member appeared upset. The interaction concerned [XXX] enough that he crossed the schoolyard to check on [XXX] and make sure she was okay.

Even on the Member’s own evidence, he departed by saying “this isn’t the end of this.” This is on its face a veiled threat. It is not appropriate to engage in conversation of that nature in a professional educational workplace with a colleague, particularly when children are present.

The Member failed to treat [XXX] with respect and dignity. His communication with her was unprofessional. The Committee finds that this allegation is established on the balance of probabilities.

3. Unprofessional communication with [XXX]

The Committee finds that the Member communicated with [XXX] in an unprofessional manner, as alleged at paragraph 7 of the Notice of Hearing. The Member failed to treat [XXX] with respect and dignity.

[XXX]

In the 2012-2013 school year, [XXX] was a [XXX] teacher [XXX] at the School. She was also the teacher in charge at the School, which meant that she held administrative responsibilities if the principal was away. At the time, she had been a [XXX] for about five years. Prior to her work as a [XXX], she taught in elementary classrooms for about 20 years.

[XXX] testified that she had been the subject of a pattern of harassment by the Member beginning in the fall of 2012 and culminating in February 2013. [XXX] testified that it was not an easy decision for her to make the harassment complaint. She had previously had a collegial working relationship with the Member, and had tried to help him when he made certain comments which she found inappropriate. She said that she tried to resolve the 2012-2013 issues directly with the Member, the principal, and her union representative. Only after these efforts failed did she make a formal workplace harassment complaint on February 19, 2013 (Exhibit 17). By February 2013 she was not feeling safe in her work environment and needed that corrected. She felt she could not go into work unless she knew that another teacher or the principal would be present; she did not want to be in the school alone with the Member.

[XXX] explained that the harassment came to the forefront in October 2012. However, previously in that school term, the Member had approached her in the schoolyard as she arrived at work. He was angry and demonstrated disrespect for [XXX]. [XXX] was, at the time, the school principal. The Member complained to [XXX] that [XXX] was a “stupid woman” and criticized [XXX] administration.

The incident that brought the harassment into the forefront occurred on October 5, 2012. On that day, at about 8:35 am, the Member approached [XXX] about a conversation between [XXX] and the parent of Student 2 (“Parent A”). [XXX] said that the Member was waiting for her right by her office as she arrived at the School.

Student 2 was a [XXX] student who had been identified as having a [XXX]. Prior to the 2012-2013 school year, [XXX] worked closely with Student 2 through the [XXX] Program. During the [XXX] Program, [XXX] would work with Student 2 for one hour a day, five days a week. However, in the Fall of 2012, Student 2 was no longer in the [XXX] Program. Student 2 was still working with [XXX], but for only at the end of the school day, three days a week. In 2012-2013, Student 2 was also a student in the Member’s class.

The Member told [XXX] that [XXX] owed him an apology. He said that Parent A was “all over his case” and complained that [XXX] told Parent A that Student 2 was currently in the [XXX]. [XXX] said the Member was very intense and stormed off.

[XXX] understood that the Member seemed to be concerned about Student 2 missing time with her ([XXX]). [XXX] wanted to clarify the differences between the [XXX] Program and the time she was spending with Student 2 in 2012-2013. She approached the Member over the lunch hour. He said to her “You had the audacity to say this was manageable.” [XXX] said that the Member was angry and shouting over her. The Member then left. [XXX] said that she was pretty shaken up by this incident because she was used to having a dialogue and being able to sort things out. The Member wasn’t listening, he was just yelling.

[XXX] eventually prepared notes of the events of October 5, 2012 (Exhibit 18). On October 10, 2012, she received an email from the Member (Exhibit 19), in which, among other things, he said, “Also on that other matter. There was no need for me to say what I did. For this I apologise. I don’t want conflict but I was embarrassed by someone’s confusion or misunderstanding (take your pick). I do believe [XXX] and I have a good working relationship and that is something.”

On November 9, 2012, [XXX] was blind-copied on an email that the Member sent to [XXX] (Exhibit 19). The email read:

Sorry to bother you but there were some issues at morning recess. I went out for fresh air and the staff member for the pavement was texting and not doing their job. I won’t name the staff member but the kids asked me to fetch their ball from the roadway. Perhaps you can bring this up to the staff.

[XXX] said that she was the only staff member assigned to supervise students on the pavement at the relevant time. It would have been obvious to [XXX] that the staff member in question was her. [XXX] said that she was confused and concerned by the email. She found the situation disconcerting and worried about the Member’s motives. She was unsure why another teacher would be monitoring her performance at work. She thought that if the Member had a concern, he should have come to her directly rather than email the principal. She felt that it was an assault on her professionalism.

On January 18, 2013, Parent A came to [XXX] office after the school day and informed [XXX] that she felt that she was “in the middle of something” between the Member and [XXX]. [XXX] responded that she could not really talk to Parent A about that, and suggested Parent A talk to the principal about it. Parent A then said that the Member was not shy about expressing his thoughts about what was going on. Parent A indicated that Student 2 felt like she was in trouble when her teacher would call.

On January 23, 2013, the Member sent the following email to [XXX] (Exhibit 20):

I have come to learn that you believe that I have, on my own accord, been keeping a score sheet of how often [Student 2’s] attendance has been disrupted by important matters such as doing banking for the Office or checking for head lice, etc.. I can assure you that it was not my idea to do this but it was requested by the parent.

Finally, I also have learned that you had expressed to the parent that you have made up any lost time due to rescheduling. I was unaware this had happened – but suppose that’s good news. I shall adjust my score sheet.

[XXX] explained that she tried to see Student 2 three times a week but there were rare occasions where she would miss her time with Student 2. Since [XXX] was the teacher in charge at the School when the principal was absent, there were occasions where something would come up and interrupt her time with Student 2. On one occasion, and one occasion only, she went to the bank to deposit money that had been collected for one of the families at the School who had lost a parent to leukemia. It was near Christmas time and it was important that the money be deposited before Christmas. There were also occasions when [XXX] was asked to check for head lice in another classroom.

[XXX] said she was disturbed that the Member would be contacting a parent about her job performance. She felt that it was an infringement on her professionalism and contrary to the Member’s professional obligations as a member of the Ontario College of Teachers. She felt that the January 23, 2012, email was flippant, insulting and disrespectful.

On February 5, 2013, Parent A came to speak to [XXX]. Parent A told [XXX] that the Member was again calling her house incessantly. Parent A said she wanted the calls to stop, that they were bothering Student 2, and indicated that the calls were so frequent that her husband thought that she was having an affair with him. [XXX] again advised Parent A to speak to the principal, [XXX].

[XXX] described a confrontation with the Member that occurred the next day, February 6, 2013. It was this incident that led her to file the harassment complaint. [XXX] entered the staff room at the School. She started putting an agenda for a school [XXX] meeting in other staff members’ mailboxes. The Member was on the other side of the room. Other staff members were present. [XXX] said the Member stood up and yelled at her that the email he sent on January 23 was not sarcastic and that they were going to have a meeting with the parent. [XXX] responded that it was not the time or place to discuss the matter. The Member “belted” out similar comments and came towards [XXX] in the staff room. Another staff member, [XXX], apparently concerned about the Member’s aggressive approach, came and stood in front of [XXX] to protect her from the Member. The Member then stormed out of the staff room. [XXX] was shaken up. She went to her office with [XXX] and locked the door. She was afraid of what the Member was going to do. [XXX] said she had never been spoken to with such anger. She did not feel safe and did not feel secure in her work environment. She was avoiding her usual practice of socializing with other staff and going to the staff room. She was staying alone in her office and avoiding the Member in the hallways. She decided to file her harassment complaint, which was sent to the union representative and the Board on February 14, 2013.

In cross-examination, [XXX] disagreed with the suggestion that it was merely the Member’s large size which caused her fear. She said that his anger, his tone of voice and how he “leans into you” also caused her to be fearful of the Member. She acknowledged he never verbally threatened her, but said she felt threatened because he was a big man and would get in her space when he was angry. She felt that the Member was volatile and unpredictable.

The Member

The Member said he was very sorry for the way things turned out with [XXX]. Before the incidents at issue, he considered himself and [XXX] to be friends.

The Member was first asked about the November 9, 2012 email he sent to [XXX], blind-copied to [XXX]. The Member acknowledged sending the email, but he did not intend to divulge who the staff member on yard duty using on their phone was. He said there were also other staff on duty. He wanted [XXX] to address it with all staff at a meeting. The Member said he regretted not speaking to [XXX] personally.

The Member was next asked about the January 23, 2013 email (Exhibit 20). He acknowledged sending it. The Member said that Student 2’s parent, Parent A, asked him to keep track of how often Student 2 was not attending her [XXX] classes. In his email, the Member only wanted to convey to [XXX] that it was not his idea to keep track of when Student 2 was attending the classes. The Member said that before he started keeping track of Student 2’s attendance, he asked his union representative, Dean Spence, for advice. Mr. Spence told the Member that it was fine to note when Student 2 was not attending the classes. Mr. Spence reminded the Member that he could never say anything untoward about [XXX] method or her teaching.

The Member filed an email exchange with Parent A from late November 2012 (Exhibit 39). The Member suggested to Parent A that she contact [XXX] about “what [XXX] is trying to accomplish in the time she sees [Student 2]. How does this fit into the curriculum. What is benchmark against which her progress can be measured. Otherwise how will we know if she has progressed.” The Member said he was not being critical of [XXX]. Parent A was concerned about Student 2’s progress. Parent A had been told there would be a meeting with the principal ([XXX]), the [XXX] teacher ([XXX]), the Member and Parent A. However, this meeting never happened. Consequentially, Parent A asked the Member to keep track of whether Student 2 was attending with [XXX].

In late January 2013, [XXX] came to the Member and asked him about the email he sent to [XXX] on January 23, 2013 (Exhibit 20). [XXX] told him that Parent A “doesn’t want to hear this.” The Member replied that Parent A asked him to provide the information. [XXX] accused him of lying. The Member said this was the same day that he had the interaction with [XXX] in the staff room.³

The Member said he was crestfallen. He was greatly downcast that the principal would call him a liar because he is not a liar. He went down to the staff room. [XXX]came in and he said “you know, I wasn’t being sarcastic.” [XXX] raised her voice and said, “This is neither the time nor the place to discuss this.” The Member said that they could meet with Parent A to resolve the issue. [XXX] repeated her previous statement. [XXX] then accused the Member of yelling at her. He testified that he was not yelling. He got out of his seat and walked around to the other side of the table. The Member said that [XXX] did not get in between him and [XXX]. Instead, [XXX] was reaching around [XXX] to get her mail out of her mailbox.

Later that night, the Member contacted Parent A and asked her to contact Dean Spence. He wanted Parent A to set the record straight and confirm that she had in fact asked him to keep track of Student 2’s attendances with [XXX]. Parent A emailed Dean Spence and said that the Member asked her to contact him (Exhibit 40). Parent A said “Mr. Armstrong did not do any thing wrong. I asked him to let me know if [Student 2] was getting help with the school and he did inform me about what was going at the school with [Student 2].”

The Member said he called Parent A because he felt he was between a rock and a hard place, having been accused of lying, and Parent A was the only one who could get him out of it. The Member testified that for the next few days, he was having anxiety and tried to contact Parent A to find out if she had spoken to Dean Spence.

The Member testified that [XXX] was good friends with [XXX] and he felt like they were targeting him.

In cross-examination, the Member was asked about the October 2012 incidents [XXX] testified about. The Member denied that he was apologizing for angry conversations in his October 10, 2012 email (Exhibit 19). He said that he had a conversation around that time with [XXX] in which she “breezed by and dismissed me like I was a tramp.” The Member said he felt sore. He spoke to [XXX] about having a meeting with Parent A, and then went to [XXX] office and had an ordinary conversation with her. He testified he expressed his unhappiness about the way she had treated him earlier. The Member said he later apologized because he realized that he no reason to be sore.

In relation to his January 23, 2013 email, the Member said that he did not intend to “take a shot” at [XXX] but acknowledged that it could be seen that way.

The Member maintained in cross-examination that he was not heated in his interaction with [XXX] in the staff room on February 6, 2013.

Credibility and Findings

The Committee finds that [XXX] was an even-handed and clear witness. She testified that she only brought her complaint to her Board as a last resort. She tried to resolve matters with the Member in an informal way. In years past, she had a better relationship with the Member and tried to help him when she saw him engaged in conduct that might get him in trouble. She testified, and the Committee believes, that she only filed a complaint because she felt fearful in her work environment. [XXX] did not present as someone who was out to get the Member.

[XXX] testified in a forthright manner. She had a clear memory of the timeline of the events in question and described them in detail. She produced contemporaneous notes in and around the period in question. Moreover, the emails from the Member introduced as exhibits provide independent evidence substantiating aspects of [XXX] evidence.

By contrast, the Member’s evidence was often more ambiguous about dates and details of the relevant events. The Member’s account of the last incident in the staff room was less plausible than [XXX]. To the extent of the disagreement between the Member’s evidence and [XXX] evidence, the Committee prefers the evidence of [XXX] over that of the Member. In particular, the Committee accepts [XXX] testimony in relation to the following four interactions with the Member.

First, the Committee accepts that the Member communicated with [XXX] in an unprofessional manner on October 5, 2012. [XXX] testified that the Member was angry and shouting over her. The incident left her shaken up. The Member sent an email apologizing for “that other matter.” The Member’s evidence was that he was apologizing for being “sore” after [XXX] had “breezed by and dismissed me like I was a tramp.” It is apparent that the Member acknowledged that he had behaved inappropriately and wanted to apologize. The Committee found the Member’s description of the interactions as implausible and finds that he is attempting to minimize his conduct. On the Member’s own evidence, it is apparent that he felt aggrieved by [XXX]. His denials of an angry confrontation were not convincing. The Committee accepts [XXX] evidence and rejects the Member’s. [XXX] version was clear and consistent, in contrast to the Member’s vague responses to questions.

Second, the Member does not deny that he sent the November 9, 2012 email about the staff member being on their phone during yard duty, which was blind-copied to [XXX]. The Committee rejects the suggestion from the Member that the email would not identify [XXX] as the teacher in question. The Member was vague in his evidence about more than one teacher being on the pavement. [XXX] was clear – she was the only teacher assigned to the pavement. It would have been plain to [XXX], the principal, who the Member was talking about. The Committee accepts [XXX] evidence on this point and rejects the Member’s. This email was an attack on [XXX] professionalism. The Committee finds that the Member wanted to paint [XXX] in a negative light to the principal. If the Member was concerned about [XXX] use of her phone, he should have addressed the issue with her directly. He acknowledged as much in his testimony.

Third, the Member does not deny sending the email on January 23, 2013 to [XXX] about the score sheet of Student 2’s attendances. He testified that Parent A asked him to keep track of when Student 2 was attending with [XXX] and he sent the email to inform [XXX] of this fact. The Member alludes to learning from Parent A that [XXX] told Parent A that missed attendances had been made up. The Member wrote “I was unaware this had happened – but suppose that’s good news. I shall adjust my score sheet.”

The clear meaning of these sentences was to question in a derisive manner the veracity of whatever assertion [XXX] had made to Parent A. The Member testified that he was being flippant and denied that he was taking a shot at [XXX]. However, he acknowledged that he could see why she would take it as a shot. He testified that he was sorry about that.

The Committee accepts [XXX] evidence that the email was insulting and disrespectful. It is clear that the email is on its face an attack on [XXX] professionalism. The Member is effectively telling [XXX] that he is keeping an eye on her. The fact that Parent A may have asked the Member to keep track of days Student 2 missed attendances and that Dean Spence may have told the Member this was acceptable do not detract from the problematic nature of the Member’s communication. The problem is that the Member conveyed to [XXX] in an inappropriate manner that he thought she was not doing her job properly and that he was monitoring her job performance. His actions would have also relayed that same message to Parent A.

Fourth, the Committee accepts [XXX] version of the incident that occurred in the staff room. Though there was disagreement about the precise date when the interaction happened, the Member acknowledged that he had been accused of lying by [XXX] and was feeling downcast and crestfallen when he went down to the staffroom. His evidence was consistent with [XXX] in that both said that his remarks started by saying that he was not being sarcastic in his January 23, 2013 email. His evidence differed only from [XXX] about the degree of anger and aggression he displayed and whether or not he “stormed” towards her.

Where there is disagreement between the evidence of [XXX] and the Member, the Committee prefers the evidence of [XXX] and rejects the evidence of the Member. The Member’s version of events was not believable. As with the allegation involving [XXX], the Member attempted to portray his conduct in a favourable light. However, in this instance, he again sought out a confrontation with [XXX] – someone he felt wronged by. The Member denied storming towards [XXX]. However, he acknowledged that [XXX] apparently shielded [XXX] from him. In his interpretation, [XXX] was reaching around [XXX] to collect her mail. The Committee finds this evidence implausible and rejects it.

It is again apparent that the Member was sensitive to criticism of his professional competence. He was upset that he had been accused of lying by [XXX] Again, despite his concerns about how others were treating him, it is clear that the Member paid little attention to how his behaviour affected those around him. His attempts to minimize his frustration and aggression were not convincing and the Committee rejects them.

There is ample evidence to support the Committee’s conclusion that the Member failed to treat [XXX] with respect and dignity. His communications with her were unprofessional. The Committee finds that this allegation is established on the balance of probabilities.

4. Criticism of [XXX] in Phone Calls to Student 2’s Parent

Paragraph 8 of the Notice of Hearing alleges that between October 1, 2012 and May 31, 2013, the Member made repeated phone calls to Student 2’s parents that were harshly critical of Teacher A’s abilities as a teacher and the Board’s failure to provide [XXX] support to Student 2.

The panel did not hear evidence from Student 2’s parent. As noted above, there was some limited evidence from [XXX] that supported a suggestion that the Member had been critical of her in discussions with Student 2’s parent. The Member was cross-examined on whether his November 21, 2012 email to Parent A (Exhibit 39) was critical of [XXX].

However, College Counsel did not pursue the phone call criticism point extensively in examination of any witness. The evidence and submissions at the hearing focused on the three incidents involving Student 1, [XXX] and [XXX]. The Committee finds there was insufficient evidence to reach an affirmative finding of this allegation on the balance of probabilities.

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);

• abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1);

• failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); and

• committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional (but not disgraceful or dishonourable), contrary to Ontario Regulation 437/97, subsection 1(18).

The Committee did not find that the Member 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 parties consented to Ron McNamara, superintendent of human resources at the Board, being qualified as a participant expert. In particular, his qualification as an expert was sought to provide opinion evidence about the standards that are applicable to members of the profession.

The Committee finds that the Member failed to maintain the standards of the profession. He failed to meet the standards of the profession primarily in two respects.

First, the Member failed to meet the standards in relation to his conduct vis-à-vis Student 1. The College’s professional standards document, Ethical Standards for the Teaching Profession, was entered as an exhibit (Exhibit 28). In relation to Student 1, Mr. McNamara pointed to the ethical standard of “Respect”, which requires teachers to honour human dignity. Mr. McNamara also testified that it is almost never appropriate to use physical force with a student. Using physical intervention is limited to exceptional circumstances where there is an imminent risk that a student may injure themselves or others. This expectation is reflected in Board policy that the Member was expected to follow.

Based on the findings of fact in relation to Student 1 articulated above, the Committee finds that the Member’s conduct fell below the standards pointed to by Mr. McNamara. In particular, the Member failed to treat Student 1 in a way that honoured his human dignity. The Member’s conduct is particularly concerning given Student 1’s [XXX] as a student with [XXX].

Second, the Member failed to meet the standards of the profession by failing to treat both [XXX] and [XXX] with respect and dignity in his communications with them. The Member’s conduct, as established in the findings of fact noted above, fell below the standards expected of a teacher as testified to by Mr. McNamara. The angry confrontations, unkind emails and reporting on a colleague’s job performance that the Member engaged in here are not in accordance with the standards expected of teachers. His conduct fell below the standards outlined in the Ethical Standards for the Teaching Profession (Exhibit 28) which, as with Student 1, required the Member to treat his colleagues with respect for their emotional wellness and human dignity. Moreover, the Board’s code of conduct obliged all members of the school community to treat each other with dignity and respect at all times, especially at times of disagreement. It also obligated all members of the school community to respect each other, especially persons of authority. The Member failed to meet these expectations. He failed to treat with respect his colleagues, especially [XXX], his principal.

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

The Committee finds that the Member abused Student 1 physically. As noted above, Mr. McNamara was qualified as a participant expert and testified about circumstances when it is appropriate for teachers to physically intervene with students. Mr. McNamara explained that it is almost never appropriate to use physical force with a student. Under the Board’s policy, using physical intervention is limited to exceptional circumstances where there is an imminent risk that a student may injure themselves or others.

Here, the Member attempted to justify his physical intervention with Student 1 essentially on the basis that there was a developing situation of urgent risk. He was concerned that a particular student left alone in his classroom might flee from the school, which presented danger because it was the end of the school day and there were a number of vehicles active outside the school. The Member also implied that he did not feel comfortable leaving Student 1 in the library because [XXX] was the only person there and she appeared to be a teenager and dressed like a “goth”. On Member’s Counsel’s submission, the Member was in a dynamic situation and had to make a decision to act.

The Committee finds that the Member’s physical intervention with Student 1 was not justified and that it amounts to physical abuse. The factual circumstances of this case do not come anywhere close to the exceptional circumstances with an imminent risk of harm that would justify the use of force against a student. Even taking the Member’s case at its highest, there was a possibility that another student in the Member’s class might flee. This possibility was speculative. If the Member was truly concerned about the safety of that student, there were a host of other actions the Member could have taken to ensure the safety of both him and Student 1. The Member could have simply turned off the computer to get Student 1’s attention and told him firmly that they had to leave immediately. The Member could have spoken to [XXX] to ascertain if she was in a position to suitably supervise Student 1 while the Member went to check on his class. Instead, the Member, admittedly frustrated, used physical force against Student 1, a particularly [XXX] student. This choice was unacceptable.

3) 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 Student 1 in his pursuit of learning by grabbing the headphone off his head and grabbing him by the arm, all of which caused him to be fearful. By subjecting the Student, a student with[XXX], to a distressing experience at school, the Member detracted from the Student’s formative education.

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.” These virtues extoll right and thoughtful conduct in teachers’ personal interactions with students and colleagues. They value benevolent and sober treatment of others, even when one feels they have been wronged. Angry, aggressive and thoughtless confrontation are the antithesis of the virtues teachers are expected to model. They are expected to show students that conflict can and ought to be resolved with thoughtfulness, just process and dignity. They are expected to treat others with respect. The Member’s conduct in aggressive confrontations with [XXX], [XXX] and aggressive treatment of Student 1, fell below these standards. The Member’s conduct set a bad example for his students and his peers. He demonstrated a lack of concern for the emotional well-being of Student 1, his colleagues and others around him.

Moreover, through his conduct with [XXX] and [XXX], the Member failed to comply with his obligation under s. 264(1)(d), “to assist in developing co-operation and co-ordination of effort among the members of the staff of the school”.

4) The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as 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 unprofessional. The Member’s conduct in relation to Student 1, and his communications with [XXX] and [XXX], demonstrated a clear disregard of the Member’s obligation to conduct himself as a professional. It is expected that teachers conduct themselves professionally, particularly when they are in situations they may perceive as frustrating or unfair when dealing with students or colleagues.

The Committee is not satisfied that the Member’s conduct would reasonably be regarded as disgraceful or dishonourable.

5) The Member did not engage in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

The Committee is not satisfied that there was sufficient evidence to establish that the Member engaged in conduct unbecoming a member. In particular, the Committee is not satisfied the evidence establishes that the Member’s conduct would bring the teaching profession into disrepute. It is not acceptable for a teacher to treat students or colleagues in the manner that the Member did, but his conduct is not so severe as to tarnish the reputation of the profession as a whole.

Date: April 8, 2019

______________________________

Claudia Patenaude-Daniels, OCT

Chair, Discipline Panel

______________________________

Ann Ciaschini, OCT

Member, Discipline Panel

______________________________

Tom Potter

Member, Discipline Panel

Footnotes

1. 1The Notice of Hearing commences with paragraph 2. There is no paragraph 1.
2. 2For the purpose of completing the record, the Committee notes that only the examination and cross-examination of [XXX] could be completed on July 3, 2018. The cross-examination of Mr. McNamara was adjourned to December 18, 2018. The document in question was located before that date and it was entered as an exhibit during the cross-examination of Mr. McNamara.
3. 3[XXX] testified the interaction occurred on February 4, 2013.