DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
David Carson Bird, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
DAVID CARSON BIRD (REGISTRATION #168414)
PANEL: Tom Potter, Chair
Nicola Powadiuk, OCT
Vicki Shannon, OCT
HEARD: December 17, 2018
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
Jessyca Greenwood of Greenwood Defence for David Carson Bird
Rebecca Durcan of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 17, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
Prior to the hearing, Vicki Shannon advised the parties that she had previous, but brief, professional interactions with Mr. Bird, specifically at the College as they were both Council members during the 6th Council. At the outset of this hearing, College Counsel advised the panel that the Member’s Counsel was made aware that Ms. Shannon, given her role as principal, was being proposed for this panel for the purpose of peer review. College Counsel confirmed that they consented to Ms. Shannon remaining on this panel. College Counsel also confirmed that they received no objection from Member’s Counsel to Ms. Shannon remaining on this panel. Ms. Shannon confirmed to the panel and to College Counsel that she did not perceive a conflict but wished to be transparent. As a result of the above, Ms. Shannon remained and the hearing proceeded.
A first Notice of Hearing dated April 7, 2017 (Exhibit 1) was served on David Carson Bird (the “Member”), requesting his presence on May 15, 2017 to set a date for hearing, and specifying the allegations. A second Notice of Hearing dated July 25, 2017 (Exhibit 2) was served on the Member, requesting his presence on August 30, 2017 to set a date for hearing, and specifying the allegations. College counsel advised the Committee that both parties had agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing. Therefore, in accordance with section 9.1 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, the Committee granted the request and one hearing was held to address the allegations as set out in both Exhibit 1 and Exhibit 2. Neither the Member nor his legal counsel were in attendance during the hearing. College Counsel advised the Committee at the outset of the hearing that the Member and his counsel were aware of the hearing date and time and were not intending to attend. College counsel further advised that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
The allegations against the Member in the first Notice of Hearing (dated April 7, 2017) are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);
(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 an act or omission 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).
The allegations against the Member in the second Notice of Hearing (dated July 25, 2017) are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he 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);
(c) he committed an act or omission 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
(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:
At all material times, David Carson Bird was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed as principal at [XXX] School in St. Catharines, Ontario. [XXX] School was a structured [XXX] school located in St. Catharines, Ontario for [XXX] school students. [XXX] School (the “School”) was owned by [XXX] Corporation. At all material times, the Member was the sole officer and director of [XXX] Corporation.
2013 – Reimbursement of Tuition Fees of Student A
Student A was a student at the School during the 2009-2010 academic year. The parent of the Student paid tuition and other fees to the School for the 2009-2010 academic year totalling approximately $30,000.
Student A commenced the school year on or about September 2009. His parent paid the tuition in accordance with the regular payment schedule as outlined by the Member. The parent also paid certain amounts for “tuck fees”. These fees were set up in accounts and used to provide the children access to money to purchase personal items. The “tuck” accounts were also used to punish children who were not acting appropriately, for example, lessening of the amount of the account could accompany discipline. The “tuck” accounts were intended to roll over from one year to the next.
In or around the spring of 2010, the School notified its students and parents about tuition fees for the 2010-2011 academic year. In addition, the School advertised an “early bird” discount, whereby if tuition was paid, in full, on or before the end of March 2010, the tuition amount would be reduced.
At that time, Student A and his parent discussed whether Student A wished to attend the School for the 2010-2011 academic year or whether to attend a school closer to his home, as he lived in the Greater Toronto area.
The parent of Student A wrote to the Member on or about March 16, 2010 and asked the Member what the refund policy would be on the “early bird” tuition amounts paid, if Student A had legitimate reasons for not enrolling in the School for the 2010-2011 academic year.
The Member responded to the parent of Student A and stated that if a withdrawal was required on the basis of compassionate grounds, then a refund was possible.
The parent of Student A sent the tuition payment of $27,000 for the 2010-2011 academic year in March 2010.
Over the summer of 2010, the family of Student A decided that it was in the best interest of the Student to attend a school closer to home.
Subsequently, the parent of Student A wrote to the Member and stated that Student A would not be attending the School for the 2010-2011 academic year, due to personal circumstances and reminded the Member of his previous correspondence with him regarding a tuition refund based on compassionate grounds.
In addition, the parent of Student A did not know how much money was in the Student’s tuck account at the time of the request for a refund.
The parent of Student A made a number of requests of the Member both directly and through counsel for the return of the tuition and the tuck fees. None of the requests were acknowledged by the Member.
In 2013, a civil action was commenced against the Member and [XXX] Corporation who was responsible for operating the School by parent of Student A. The civil action involved the recovery of tuition fees that were paid for the 2010-2011 academic year and any outstanding tuck fees. A copy of the Corporate Profile for [XXX] Corporation is attached hereto and marked as Exhibit “B”.
There was a pre-trial held in June 2013, where a settlement was reached between the parties. Counsel for the parent of Student A prepared draft minutes of settlement and a full and final release and sent them to the Member. The documents were sent to the Member by email dated August 21, 2013.
On August 25, 2013, there was an agreement between the Member, [XXX] Corporation and the parent of Student A for the restitution to be made to the parent in the amount of $22,500. The Member responded by email stating, “[y]our draft documents are approved by me, on behalf of both Defendants.”
On September 17, 2013, counsel for the parent of Student A emailed the Member to confirm that the settlement documentation was approved and that “you can take steps to prepare the settlement funds.” Accordingly, as of September 17, 2013, the minutes of settlement, which were approved by the Member on behalf of the defendants on August 25, 2013, was then agreed to by all parties.
Counsel for the parent of Student A received an automatic out-of-office response from the Member, stating “[t]hank you for your email. Our staff and students are white water rafting and will return on September 23rd.”
The parent of Student A executed the minutes of settlement and it was forwarded to the Member by email dated September 19, 2013. Again, an out-of-office response was received as was indicated in paragraph 18 above.
The Member advised counsel for the parent of Student A that he did not receive the executed minutes of settlement.
On October 7 and 16, 2013, the Member faxed to counsel for the parent of Student A revised minutes of settlement to essentially relieve himself of any personal liability.
Finally on November 25, 2013, an agreement was reached between the Member, on behalf of the School and the parent of Student A that restitution of the tuition fees and tuck fees would be made within one month’s time.
The tuition and tuck fees were not repaid to the parent of Student A. The School closed and stopped operation on November 1, 2013.
The Member knew that by at least the end of October 2013, the School was in significant financial difficulty and failed to disclose the financial difficulties to the parent of Student A. Instead he led the parent to believe that restitution of the tuition and tuck fees would be made.
The Member knew or ought to have known that he made a dishonest and fraudulent representation to the parent of Student A which concerned the financial situation of the School. He knew or ought to have known that the School and/or its corporate owner was in financial difficulty by late October/early November 2013.
Attached hereto and marked as Exhibits “C” and “D” respectively are copies of Reasons for Decision of the Superior Court of Justice dated October 6, 2015 and Endorsement of the Superior Court of Justice – Divisional Court dated September 15, 2016.
The tuition fees and tuck fees were never repaid to Student A or his parent.
2013-2014 academic year – School Closure
The School was in financial difficulty at the beginning of the 2013-2014 academic year.
By the middle of September 2013, the Member was personally concerned about the School’s finances.
In October 2013, the Member knew that the School was in significant financial difficulty and should have disclosed this information to the parents of the students enrolled at the School for the academic program and residential accommodation.
The Member collected and retained fees from the students and parents. He did not return or attempt to return any of the fees collected when he knew or ought to have known that the School was in financial difficulty and likely to be closed. The Member did not attempt to communicate with the parents of the students in a timely manner to provide parents the opportunity to make other arrangements for their children or to recover any fees spent on programs which he knew would not have been available to the students.
The School closed on November 1, 2013. The Member notified the parents of the students the night before the School was closed. The Member told the parents of the students that they were to pick up their children the next day as the School had ceased to operate and was closed.
On November 3, 2013, the Member sent an email to parents of students indicating that School staff would be prepared to assist students to complete credits through online learning following the closure of the School. Attached hereto and marked as Exhibit “E” is a copy of the Member’s November 3, 2013 email to parents.
The Member failed to give adequate consideration to the needs and vulnerabilities of the students in the course of his actions to close the School. He failed to take adequate steps to minimize the adverse impact on those students or to make arrangements to protect students learning and well-being. For example, given the nature of the student population, it was difficult for many of the students to adapt to the sudden change in their learning environment or to complete coursework online.
GUILTY PLEA
By this document,1 the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 34 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(12), 1(15), 1(18) and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Committee rendered an oral decision on December 17, 2018 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(12), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 34 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(12), 1(15), 1(18) and 1(19).
Paragraphs 13, 20-25, 27 and 29-34 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 2, 8, 13, 16, 17 and 21-27 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12).
Paragraphs 21-27 and 29-34 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 21-25, 27 and 29-34 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed an act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 21-25, 27 and 29-34 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
The parties provided the Committee with a Joint Submission on Penalty (Exhibit 4), indicating that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”); and
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 22 months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.
RESIGNATION, UNDERTAKING AND ACKNOWLEDGMENT
In addition to the Joint Submission on Penalty, College Counsel advised the Committee that the Member agreed to the following terms and conditions, as set out in the Resignation, Undertaking and Acknowledgment of David Carson Bird (the “Undertaking and Acknowledgment”) (Exhibit 5):
I hereby resign as a member of the Ontario College of Teachers with immediate effect.
I undertake that following my resignation, I will not teach in any public or private school in Ontario or work in any position which requires membership in the Ontario College of Teachers.
I undertake that if, in the future, I seek to apply for a Certificate of Qualification and Registration, or to apply for reinstatement of my Certificate of Qualification and Registration, I will first successfully complete courses on professional ethics and on the educational needs of [XXX] students, which have been pre-approved by the Registrar, and will provide proof of successful completion of same to the Registrar, before submitting my application to be considered by the College.
I acknowledge that my status on the Public Register of the Ontario College of Teachers will be “Resigned-Cancelled”, with a notation referring to the fact that I have undertaken to successfully complete coursework prior to seeking reinstatement of or applying for a Certificate of Qualification of Registration:
“On December 17, 2018, before the Discipline Committee at the College, the Member resigned his membership with the Ontario College of Teachers and signed an undertaking not to reapply without having successfully completed coursework pre-approved by the Registrar.”
- I acknowledge my understanding about the scope, purpose and effect of my execution of this Undertaking and Acknowledgement and am executing same voluntarily, unequivocally, and with the advice of legal counsel.
PENALTY DECISION
In an oral decision on December 17, 2018 the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, directing that the Member receive a written reprimand and directing that the Registrar suspend the Certificate of Qualification and Registration of the Member for a period of 22 months, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case, including the fact that he entered into the Undertaking and Acknowledgment, as set out above. The Undertaking and Acknowledgement clearly addresses several concerns of the Panel, namely that the Member’s Resigned-Cancelled designation on the Public Register of the Ontario College of Teachers will prohibit the Member from seeking any employment which requires membership in the Ontario College of Teachers. Furthermore, prior to seeking reinstatement the Member will be required to submit a full application for a new Certificate of Qualification of Registration for the College’s review, as well as complete remedial coursework. Although the Panel is not ordering the terms as described in the Undertaking and Acknowledgement, it is comforted that these provisions will be addressed so that the Member receives the necessary remediation and the public is protected. The transparency of the Undertaking and Acknowledgment reassure the Panel that the public is aware as to why it is prepared to only order a reprimand and a suspension. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Bourgon 2012 ONOCT 5, Ontario College of Teachers v. Vellinga 2018 ONOCT 10 and Ontario College of Teachers v. Alphonso 2016 ONOCT 1.
Reprimand
The Committee finds that it is appropriate to order a reprimand. The Member was the sole officer and director of [XXX] Corporation, as well as served as the principal of [XXX] School for [XXX]students. As such, the Member was responsible for providing the requisite care and attention to the academic and social needs of these vulnerable students. The Member made dishonest and fraudulent representations to the parent of Student A concerning the financial situation of the School and failed to repay Student A’s tuition and tuck shop fees, as per the terms of a settlement agreement reached during civil proceedings. Furthermore, the Member continued to collect fees from other students and parents when he knew or ought to have known that the School was in financial difficulty and that it was likely to close in the imminent future. The Member gave parents and students one day’s notice before the School ceased operations. The Member’s actions, with the abrupt closure of the School and boarding program, failed to adequately consider the needs and vulnerabilities of students and their parents.
The reprimand will provide the Committee with the opportunity to express its concerns to the Member, and will serve as an important reminder of the ethical standards of the profession, should the Member ever decide to apply for reinstatement. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession, demonstrating that this type of dishonest and unethical behaviour will not be tolerated by the teaching profession.
Suspension
Given the serious nature of the Member’s misconduct, the Committee finds that a 22-month suspension is warranted in this case. The suspension will commence on the date of the order. The duration of the Member’s suspension is consistent with similar prior decisions of the Discipline Committee, as presented by College Counsel. Although the Member has resigned his membership in the teaching profession, the fact of the suspension will be recorded on the Register and will remain on the Register to serve as a general deterrent to other members of the profession. The Committee is satisfied that the penalty is appropriate and meets the principle of serving and protecting the public interest.
Date: January 10, 2019
Tom Potter
Chair, Discipline Panel
______________________________ Nicola Powadiuk, OCT
Member, Discipline Panel
Vicki Shannon, OCT
Member, Discipline Panel