DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION ON PENALTY, 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
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 15, 2019
Andrew Matheson and Caroline Humphrey of McCarthy Tétrault LLP, for Ontario College of Teachers
John Navarrete of Neuberger & Partners LLP, for Robert Armstrong
Robin McKechney 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, and continued on July 3 and December 18-19, 2018.
A decision finding that Robert Armstrong (the “Member”) engaged in professional misconduct was rendered on April 8, 2019.
The Committee reconvened on April 15, 2019 to hear submissions with respect to penalty. The Member attended the penalty phase of the hearing and had legal representation.
OVERVIEW
In its April 8, 2019 decision, the Committee found that the Member committed acts of professional misconduct in relation to three separate incidents between March 2011 and May 2013. The Committee’s conclusions and its reasons for these are detailed in that decision and only a brief summary will be recited here.
First, the Committee found that the Member inappropriately used physical force on a student with [XXX], Student 1, in his [XXX] grade class. While Student 1 was seated at a computer, the Member aggressively removed headphones from Student 1’s head. The Member then forcefully picked Student 1 up out of his chair by the elbow. Second, the Member communicated in an inappropriate manner with his principal, [XXX]. After receiving an email from [XXX], 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, the Member inappropriately communicated with [XXX], his fellow teacher. The Member sent inappropriate emails undermining his colleague’s professional competence. The Member also verbally accosted [XXX] in the staff room.
The Committee found that the Member’s conduct gave 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 – which were alleged in the Notice of Hearing), 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), which was alleged in the Notice of Hearing.
At the penalty hearing, the Committee heard submissions from the parties proposing a joint submission on penalty, which the Committee accepted. In an oral decision dated April 15, 2019, the Committee ordered a reprimand, a six-month suspension of the Member’s license, and terms, conditions and limitations requiring the currently retired Member to complete coursework should he ever decide to return to teaching. Costs in the amount of $10,000 were ordered, payable by the Member to the College. The oral decision indicated that reasons would follow. These are those reasons.
PENALTY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel informed the Committee that the parties had agreed to a joint position on the penalty to be imposed, which was submitted orally. In particular, the parties submitted that the Committee should order a penalty that included the following elements:
a reprimand, to be delivered orally;
a suspension of six to eight months in duration; and
terms, conditions or limitations which would restrict the Member from returning to the teaching profession until he successfully completes coursework addressing the concerns in this case.
The parties did not agree on a precise length of the suspension to be imposed, but agreed on the range of six to eight months, leaving it to the Committee to determine the precise length.
College Counsel submitted that the components of the joint submission on penalty were appropriate for three reasons.
First, the serious aggravating factors in this case outweigh the mitigating factors. College Counsel submitted that the Member’s conduct represents a pattern of disrespectful and aggressive behaviour. The conduct was not just an isolated incident of a lack of judgment. There were indications of harm suffered by the victims of the Member’s disrespect and anger. Student 1, a [XXX] grade student [XXX], was fearful for months after the Member aggressively grabbed the headphones off his head and lifted him out of a chair. Student 1 was removed from the Member’s class. [XXX], the Member’s principal, broke down crying after the Member aggressively confronted her in the schoolyard. [XXX] the Member’s colleague, reported fear of the Member and changed her daily routine to avoid encountering him.
Conversely, College Counsel submitted that there is an absence of significant mitigating factors. College Counsel submitted that the Member cannot point to any insight or rehabilitation to date. The Member has not apologized to any of the subjects of his disrespect and anger.
Second, general deterrence is critically important in cases such as this. Although the Member is retired and has reported that he does not intend to return to teaching, College Counsel submitted that general deterrence was nonetheless important. In particular, he argued that it is critical to send a message to others in the profession and those in the public that members of school communities are required to act appropriately, and that members of school communities will be protected from fear and intimidation. The message must be that the conduct in which the Member engaged will not be tolerated and will be appropriately penalized.
Third, the penalty sought is supported by precedents. College Counsel presented two cases to the Committee in support of the proposed penalty: Ontario College of Teachers v. O’Shea, 2017 ONOCT 8 (“O’Shea”) and Ontario College of Teachers v. Lowrie, 2015 ONOCT 53 (“Lowrie”). In O’Shea, a reprimand, six-month suspension and coursework were imposed in the case of a Member found to have engaged in unprofessionalism and insubordination, including finger pointing at her principal. This fact, in College Counsel’s submission, represents a close analogy to the Member’s case.
In Lowrie, a reprimand, six-month suspension and coursework were imposed on a Member who was found to have made inappropriate and threatening comments to his principal within earshot of students, made disrespectful comments to students, and exhibited a pattern of insubordination and disregard of policy and procedure.
According to College Counsel, these cases provide guidance with respect to the Committee’s determination of the appropriate penalty. Both cases present similar misconduct to that found by the Committee in this case. Thus, the penalty jointly sought here is consistent with the penalties imposed in both O’Shea and Lowrie.
PENALTY SUBMISSIONS OF THE MEMBER
The Member’s Counsel submitted that he agreed with College Counsel’s articulation of the key aggravating factors and the rationale behind the joint submission on penalty. Member’s Counsel submitted that the joint position was warranted in the circumstances of this case, particularly when consideration is given to the cases presented by College Counsel and the importance of denunciation and deterrence. He submitted that the jointly submitted six to eight month suspension range appropriately encompassed concerns arising from the Committee’s findings and appropriately sanctioned each of the Member’s acts of misconduct and the penalty as a whole was just and appropriate, thereby consistent with the principle of totality.
Member’s Counsel provided background information about the Member’s life and career. The Member retired in 2015 after practising as a teacher for 27 years. While the findings of the Committee reflected a pattern of inappropriate behaviour, this pattern was limited to the period of 2011 to 2013. Counsel underlined for the Committee that the Member’s career and character are not solely defined by the content of those two years, but his whole 27-year career will carry the burden of the penalty imposed by the Committee. Member’s Counsel submitted seven letters of support from fellow teachers and educational assistants who worked with the Member throughout his career, as well as from the Member’s friends. All speak highly of the Member’s character and respectful behaviour in recalling interactions with him over many years. Member’s Counsel acknowledged that the authors had not had the opportunity to review the Committee’s decision on finding in this case before submitting the letters. Counsel argued that, nonetheless, the letters demonstrated that the Member was a very good teacher and a very good colleague.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
In reply, College Counsel submitted that he was not objecting to the admission of the letters of support filed by the Member but argued they were entitled to very little weight because the authors did not acknowledge awareness of the Committee’s findings. He argued that if a person is speaking to character, they should know all of the relevant facts.
PENALTY DECISION
The Committee accepted the parties’ joint submissions on penalty and made the following order:
The Member is directed to appear before the Committee within 90 days to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar of the Ontario College of Teachers (the “Registrar”) is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six months from the date of the Committee’s order and the fact of the suspension is to be recorded on the Register;
The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) Prior to returning to teaching or any position for which a Certificate of Qualification and Registration is required (a “teaching position”), the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding anger management and awareness of how his behaviour impacts members of the school community including students, parents, guardians, teachers, support staff and administrators, subject to the following conditions:
(i) the Member will provide to a course provider approved by the Registrar, a copy of both the Decision on Finding and Reasons for Decision and the Decision on Penalty, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member; and
(iii) The course shall be completed no more than three months before the Member returns to teaching or any position for which a Certificate of Qualification and Registration is required.
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:
(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
REASONS FOR PENALTY DECISION
The parties made a joint submission regarding penalty, although a range was provided for the length of the suspension as opposed to a specified term. 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 is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.
The parties jointly pointed to two primary aggravating factors in this case, which the Committee accepted. First, the Member’s misconduct formed a pattern of inappropriate behaviour over a two-year period. He repeatedly failed to control his anger and frustration. Over this period, the Member showed no insight into his problematic behaviour and did not change his ways despite the problematic behaviour being brought to his attention and completing an anger management course. Second, the Member’s misconduct resulted in harm to the individuals affected. Student 1’s [XXX] mother reported that he suffered from heightened anxiety for months after the incident with the Member. Student 1 was removed from the Member’s class to prevent further harm. [XXX] testified about her serious fear of the Member – going so far as to adjust her daily routines to avoid him. There was also evidence that after being confronted by the Member, [XXX] experienced some level of emotional distress that she later communicated to Ron McNamara, a Board superintendent.
The Committee also accepted that there are very limited mitigating factors in this case. There is an absence of any insight on the part of the Member into the impact of his actions on those around him and he has not engaged in meaningful rehabilitation.
Counsel for the Member filed a number of letters of support from other members of the education community. The Committee carefully reviewed these letters and acknowledges the Member’s 27-year teaching career, largely unblemished by professional misconduct.
The Committee is satisfied that the order set out above satisfies the penalty objectives of specific and general deterrence, rehabilitation, transparency, and protection of the public interest. The order is proportionate to the Member’s misconduct and in line with the Committee’s factual findings and legal conclusions, which are set out in the Committee’s Decision on Finding and Reasons for Decision dated April 8, 2019. It also falls within a range of acceptable outcomes, based on the prior decisions of the Discipline Committee presented by College Counsel and concurred with by Member’s Counsel.
Reprimand
The Committee finds that the Member’s pattern of inappropriate behaviour warrants a reprimand by his peers. The Member engaged in a pattern of disrespect and inappropriate behaviour. He aggressively intervened with physical force to remove Student 1 from a computer and engaged in inappropriate interactions with his principal and a colleague. Members of the teaching profession are expected to promote safe and supportive learning environments and to model appropriate and respectful behaviour. The Member’s conduct fell well short of meeting these expectations, and the Committee was concerned about the aggression shown by the Member and his lack of emotional control. The reprimand will allow the Committee to directly address its concerns with the Member. It serves as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
Suspension
The Committee finds that a six-month suspension of the Member’s Certificate of Qualification and Registration is reasonable and appropriate, given his serious and repeated misconduct in this case.
The parties agreed on a range of suspension to be imposed in this case – six to eight months. The Committee concluded that the Member’s misconduct called for a suspension at the lower end of the range proposed by the parties. Both the imposition of a suspension and the six-month length are consistent with the cases presented by the parties. Both cases – O’Shea and Lowrie – involved the imposition of six-month suspensions for conduct that was similar in nature to that in this case. While every case before the Committee presents its own unique factors and the imposition of penalty ought to be an individualized exercise, the Committee is satisfied that a six-month suspension is consistent with the established precedents, is proportionate, and will serve the principles of specific and general deterrence in this case.
The Committee must send a clear message to both the Member and the profession that the kind of conduct in which the Member engaged is unacceptable.
Coursework
The Committee finds that a course of instruction is an important element for the rehabilitation of the Member’s teaching practice, should he ever return to a teaching position. It must address two issues: (1) anger management; and (2) awareness of how his behaviour impacts members of the school community including students, parents, guardians, teachers, support staff and administrators.
The Member must gain the tools to help regulate his anger and his frustration so that they do not manifest in the physical, verbal or emotional abuse of any member of the school community.
In the Committee’s view, the coursework to be completed must provide strategies to enable the Member to self-regulate and understand how his behaviour is impacting those around him, particularly in emotionally charged and frustrating situations. It should include assignments that require the Member to self-reflect on his behaviour and provide opportunities for him to gain insight into how his words and actions affect students, colleagues and other members of the learning community.
The Member must accept that members of the teaching profession hold a unique position of trust and authority, and that his conduct caused harm to Student 1 and his colleagues.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
COSTS SUBMISSIONS OF COLLEGE COUNSEL
College Counsel orally informed the Committee that the parties had agreed to a joint position on the costs to be imposed in this matter. In particular, the parties submitted that Committee should order $10,000 costs payable by the Member to the College.
College Counsel referred the Committee to s. 30(5) at paragraph 4 of the Ontario College of Teachers Act, 1996 (the “Act”) which authorizes the Committee to order costs payable by the Member to the College where there has been a finding of professional misconduct. College Counsel also referred the Committee to Rule 16.05(3) of Rules of Procedure of the Discipline Committee and Fitness to Practise Committee (the “Rules”) and Tariff A, which provide that the College need not present evidence of the costs of a prosecution where the amount of costs is equal to or less than $10,000 per day of hearing.
College Counsel submitted that in this matter, there were four days of hearing, not including the day occupied by the penalty submissions. The College called five witnesses. Counsel submitted that the logic of the costs provisions is compensatory.
College Counsel submitted that the figure of $10,000 jointly proposed was arrived at after considering the Member’s specific financial circumstances. The Member is currently retired. In those circumstances, the College agreed that the figure was appropriate.
COSTS SUBMISSIONS OF THE MEMBER
Member’s Counsel submitted that the $10,000 figure proposed for the costs order was arrived at jointly and was appropriate. Member’s Counsel indicated that the Member’s financial circumstances, including his retirement, formed part of the parties’ considerations when they agreed upon the proposed amount.
COSTS DECISION
The Committee rendered an oral decision on April 15, 2019, in which it ordered the Member to pay costs of this matter to the College fixed in the amount of $10,000, which must be paid within 12 months of the date of that order.
REASONS FOR COSTS DECISION
The Committee is empowered by s. 30(5) at paragraph 4 of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct. Equally, costs can be ordered payable by the College to the Member where the Committee is of the opinion that the commencement of the proceeding was unwarranted pursuant to s. 30(9).
Rule 16 of the Rules creates the procedure applicable where either party seeks costs. Pursuant to r. 16.05(3), where the College requests costs, no evidence of the cost of a day of hearing need be provided if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000. The amount claimed by the College is equal to or less than $10,000 per day and therefore the College is not required by the Rules to provide evidence of its costs of convening and litigating this matter.
Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly.
In this case, the parties agreed on the quantum of costs. Counsel submitted that a number of factors were taken into consideration before arriving at the $10,000 quantum proposed. In particular, the parties carefully considered the Member’s ability to pay a significant costs order. The proposed costs order is less than the Tariff A amount for the five days occupied by this proceeding (four days of hearing on finding and one day of hearing on penalty).
The Committee found that it is just and appropriate to order costs against the Member in the amount of $10,000 and accedes to the joint submission. It is reasonable that the Member be given 12 months to pay this significant amount.
Date: May 9, 2019
Claudia Patenaude-Daniels, OCT Chair, Discipline Panel
Ann Ciaschini, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel