DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Fontaine 2019 ONOCT 57
Date: 2019-07-09
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
Sheryl Anna Jean Fontaine, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
SHERYL ANNA JEAN FONTAINE (REGISTRATION #215175)
PANEL: Rebecca Forte, OCT, Chair Diane Ballantyne, OCT Marlène Marwah
HEARD: July 9, 2019
Charlotte-Anne Malischewski of McCarthy Tétrault LLP, for Ontario College of Teachers
Naomi Greckol-Herlich of Ursel Phillips Fellows Hopkinson LLP, for Sheryl Anna Jean Fontaine
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 July 9, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 12, 2018 (Exhibit 1) was served on Sheryl Anna Jean Fontaine (the “Member”), inviting her to participate in the scheduling of the hearing and specifying the allegations.
The Member was not in attendance for the hearing but had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
IT IS ALLEGED that Sheryl Anna Jean Fontaine is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(d) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(e) she 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);
(f) she contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(g) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(h) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
College Counsel presented the Committee with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Sheryl Anna Jean Fontaine is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Upper Canada District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.
In or about the 2014 – 2015 academic year the Member engaged in an inappropriate personal relationship with Student 1, including but not limited to:
(a) attended extracurricular sporting events with Student 1;
(b) offered alcohol to Student 1;
(c) encouraged Student 1 to spend her lunch hour in the Member’s classroom;
(d) sent texts or other electronic messages of a personal nature to Student 1;
(e) failed to properly report personal issues involving Student 1, within a reasonable time of becoming aware of them.
In or about the 2014 – 2015 academic year, the Member and Student 1 both attended a [XXX] in [XXX]. The [XXX] was not a school activity. Student 1’s parents were also present on the trip, but did not stay in the same room as her. Student 1 shared a hotel room with the Member, [XXX]. The Member and Student 1 shared a bed. There was contact of an inappropriate and sexual nature.
In or about the 2014 – 2015 academic year, the Member engaged in inappropriate communication with Student 1, including but not limited to:
(a) communicated or attempted to communicate with Student 1 for personal reasons;
(b) in or about February 2015, sent text messages to Student 1, despite having been advised by her principal not to communicate with Student 1 except for professional purposes;
(c) communicated with Student 1 on Twitter.
As a result of the above allegations, on or about March 26, 2015, the Board placed the Member on home assignment, with pay, pending the outcome of their investigation. Attached hereto and marked as Exhibit “B” is a copy of the Board’s correspondence to the Member dated March 26, 2015.
The Board concluded its investigation and determined that the Member engaged in inappropriate conduct which could be characterized as professional misconduct. The Board suspended the Member without pay, effective April 18, 2016 for the remainder of the 2015-2016 school year, or 53 days. The Board directed the Member to attend training on Professional Boundaries. Attached hereto and marked as Exhibit “C” is a copy of the Board’s correspondence to the Member dated April 18, 2016.
On or about November 6, 2017, the Member was terminated by the Board with immediate effect, for just cause. Attached hereto and marked as Exhibit “D” is a copy of the Board’s correspondence to the Member dated November 6, 2017.
PLEA OF NO CONTEST
By this document,1 the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 to 8 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against her being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(14), 1(15), 1(17), 1(18), and 1(19).
By this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that by signing this document she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;
(d) she understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) she 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 her name, shall be published in the official publication of the College;
(f) she understands that any agreement between counsel for the College and herself with respect to the penalty proposed does not bind the Discipline Committee;
(g) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Committee rendered an oral decision on July 9, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(14), 1(15), 1(17), 1(18), and 1(19).
REASONS FOR DECISION
The Member did not contest the facts referred to in paragraphs 1 to 8 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. In addition, in oral submissions, counsel for the Member acknowledged and admitted for the purpose of this hearing only that the Member was Student 1’s teacher in the 2013-2014 school year when Student 1 was in Grade 9. The Member acknowledged and the Committee accepts that the Uncontested Facts and additional admissions in oral submissions constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(14), 1(15), 1(17), 1(18) and 1(19).
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). College Counsel drew the Committee’s attention to the College’s Professional Advisory Professional Misconduct Related to Sexual Abuse and Sexual Misconduct (Exhibit 3) in this regard and submitted that the conduct to which the Member has pled no contest is self-evidently a failure to maintain the standards of the profession. The Committee accepts this submission.
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraph 4 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3). The conduct to which the Member has pled no contest amounts to sexual abuse as defined in the Act.
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14).
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest 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).
Paragraph 3 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17).
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 3-5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 4), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
directs the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar; and
directs that the Member appear before the Committee following the hearing of this matter and no later than 120 days after the date of the hearing to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
The Joint Submission on Penalty initially provided for the reprimand to occur immediately following the hearing. As the Member did not attend the hearing, the parties agreed in oral submissions to an amendment on consent that the reprimand be delivered following the hearing of this matter and no later than 120 days after the date of the hearing.
PENALTY DECISION
In an oral decision rendered on July 9, 2019, the Committee accepted the Joint Submission on Penalty presented by the parties, as amended on consent, and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Chiandussi, 2018 ONOCT 48, and Ontario College of Teachers v. DeBernardi, 2019 ONOCT 7.
The Committee finds that the Member’s unacceptable conduct demands a reprimand from her peers. The reprimand will allow the Committee to directly address its serious concerns with the Member and, although the Member’s Certificate will be revoked, it will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
Revocation is the appropriate order given the circumstances. The Member sexually abused Student 1 and the Committee does not tolerate this type of conduct. As an educator, the Member took advantage of her position of trust and authority to make sexual advances to a student. As teachers are entrusted with the care of students, there is no place in the profession for members who sexually abuse students. They must provide students with a physically and emotionally safe learning environment and act as role models. They must maintain appropriate boundaries and never make sexual advances or touch students in a sexual manner. By failing to maintain appropriate boundaries, as well as touching Student 1 in an inappropriate and sexual manner, the Member breached her obligations in the most serious manner. Revocation is the only penalty that appropriately responds to professional misconduct of this nature and gravity. The Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario. The Committee denounces the Member’s misconduct in the strongest terms.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: July 9, 2019
Rebecca Forte, OCT Chair, Discipline Panel
Diane Ballantyne, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel