DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Reid 2019 ONOCT 62

Date: 2019-05-28

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

Jeffrey Alan Reid, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JEFFREY ALAN REID (REGISTRATION #587324)

PANEL: Jean-Luc Bernard, OCT, Chair

Sara Nouini, OCT

HEARD: May 22-23, September 24-26, 2018 and January 14, 2019

Eli Mogil, Vladimira Ivanov and Amanda Iarusso of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk

Richard Evenson and Eric Bundgard of Evenson Bundgard LLP, for Jeffrey Alan Reid

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 December 7, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated May 25, 2016 was served on Jeffrey Alan Reid (the “Member”) requesting his presence on June 13, 2016 to set a date for hearing, and specifying the allegations.

Before the start of the hearing on the merits, the Member brought a motion seeking the disclosure of third party records. The Committee’s Decision and Reasons for Decision on Motion for Third Party Production of Records was rendered on April 20, 2017.

The hearing on the merits began on May 22, 2018 and continued on May 23, 2018, September 24-26, 2018, and January 14, 2019. The Member was in attendance for the hearing on the merits and he had legal representation.

The panel of the Committee was originally comprised of three members: Ravi Vethamany, OCT, Chair, Jean-Luc Bernard, OCT, and Sara Nouini, OCT. Between September 26, 2018, and January 14, 2019, Ravi Vethamany, OCT, became unable to complete the hearing. As a result, the hearing reconvened on January 14, 2019, before the remaining two members: Jean-Luc Bernard, OCT, now acting as Chair, and Sara Nouini, OCT. Pursuant to section 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the remaining members of the Committee were able to complete the hearing and give a decision in this matter.

OVERVIEW

The Member worked as a [XXX] at the [XXX] in Peterborough, Ontario. He provided care for a [XXX]-year-old male child with [XXX] and [XXX] (the “Child”). An incident arose on November 25, 2012, in which the Member is alleged to have mistreated the Child during a series of the Child’s outbursts. Another staff member of the [XXX] captured this incident in two cell phone video recordings (the “videos” or the “video evidence”). The videos were brought to the attention of the Child’s parents in 2014. The parents subsequently complained to the College, which gave rise to the allegations set out below in the Notice of Hearing dated May 25, 2016.

The College alleges that the Member mistreated the child. The Member denies all of the allegations of professional misconduct.

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 found that the College did not prove that the Member committed professional misconduct under any of the alleged heads of misconduct.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated May 25, 2016 are as follows:

IT IS ALLEGED that Jeffrey Alan Reid 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);¹

(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) 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);

(f) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Jeffrey Alan Reid is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Kawartha Pine Ridge District School Board (the “Board”).

3. At all material times, the Member was employed as a [XXX] at a [XXX].

4. During 2012, the Member was the [XXX] for a [XXX]-year-old male child with [XXX] and [XXX] (the “Child”) at the [XXX].

5. On or about November 25, 2012, the Member treated the Child inappropriately and/or failed to provide appropriate care for the Child including but not limited to:

(a) antagonized and/or taunted the Child with comments including but not limited to;

(i) “is that all you have big boy”;

(ii) “I’m not scared of you”;

(b) placed his knees on the chest of the Child;

(c) held a glass of liquid over the Child’s head;

(d) suggested or implied he would tip the glass of liquid onto the Child;

(e) failed to care for and/or refused to assist the Child, such that the Child:

(i) hit himself on the head

(ii) hit the floor with his feet, arms and head

(iii) struck out at the Member and

(iv) inflicted self-harm

(f) touched the shoulder of the Child; and

(g) turned room lights off and left the Child unattended and said “let’s not pay attention to him.”

6. The Member consumed alcohol and/or illegal substances while responsible for the care of children or other vulnerable persons.

THE MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing dated May 25, 2016.

EVIDENCE

The parties presented oral, video and documentary evidence in this matter. Relevant portions of this evidence will be set out in greater detail, as needed, in the Committee’s reasons for decision below. The following is a brief summary of the parties’ evidence.

Exclusion of Witnesses

The College requested that the Committee order that the witnesses in this matter (other than the Member) be excluded from the hearing until called to give evidence, in accordance with Rule 13.12 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”). The Committee granted the College’s request, but notes that the request was only made after Debra Reid (a witness called by the Member) heard a significant portion of the evidence of the Child’s mother (a witness called by the College).

The College’s Evidence

The College called one witness – the Child’s mother.² She provided background information about her son’s medical, behavioural and developmental history. She also provided her interpretation of the incidents captured in the videos taken of her son at the [XXX]. The College called her as a witness instead of the Child, indicating that he would not have been capable of testifying, given his medical condition.

Testimony of the Child’s mother

The Child’s mother testified that her son was [XXX] years old at the time of the events in question in November 2012. She explained that he was diagnosed with [XXX] and an intellectual exceptionality and that his cognitive abilities were equivalent to those of a [XXX] child. His pediatrician diagnosed him with [XXX] in 2009. She described her son as having poor self-regulation skills. He relied on others to support him in day-to-day tasks, from toileting to handwashing, eating, dressing and emotional regulation. At the time that he attended the [XXX], he had poor communication skills and could only say a couple of words at a time, and he had limited coping skills. The Child’s mother testified that her son regularly had episodes, which could often be de-escalated. The Child’s mother noted that her son would require constant support for the rest of his life.

The Child attended the [XXX] from 2012 until around May 2014, typically for one weekend each month. The Child’s mother testified she provided [XXX] with detailed information regarding her son’s medical condition, his bedtime routine, his likes and dislikes, triggers that would lead to his episodes, and advice about how to comfort him (see Exhibit 9). The Child’s mother also testified that she provided detailed notes about her son’s recent behaviour when she dropped him off at the [XXX] (see Exhibit 10).

Much of the Child’s mother’s evidence consisted of her interpretation of her son’s behaviour in the videos and her interpretation of the actions of the adult caregivers around him. In particular, much of her evidence consisted of her opinion that the Member had failed to provide adequate care for her son through the actions documented in the videos.

In closing submissions, College Counsel submitted that the College was not relying on the Child’s mother’s interpretation of the videos or her opinions about what ought to have been done in response to the Child’s episode. Consequently, that evidence will not be recounted in any detail in these reasons.

The Videos

The College’s case against the Member rests almost entirely on the content of the two video recordings that were entered into evidence as Exhibits 7 and 8. The recordings were made by Jeanette Cleveland, one of the Member’s co-workers at the [XXX] on November 25, 2012. The Committee was informed that Ms. Cleveland had been subpoenaed to the hearing. She did not attend or give evidence.

The Committee viewed two segments of this video. The first video segment captures the Member’s treatment of the Child during one of his episodes. The second video segment, apparently recorded shortly after the first, captures another staff member interacting with the Child towards the end of an episode.

The contents of the videos will be addressed in more detail below.

The Member’s witnesses

The Member testified on his own behalf. He also called as a witness Debra Reid, who is the Member’s mother and the Executive Director of the Down Syndrome Association of Peterborough (“DSAP”), which operated the [XXX] at all material times.

Testimony of Debra Reid

At the time of the hearing, Ms. Reid had served as the Executive Director of the DSAP for more than 15 years. She was responsible for the organization’s day-to-day operations, fundraising, programming and administration. The DSAP’s main purpose is to provide support to individuals with Down syndrome and their families. The DSAP operated the [XXX] from 2009 to 2014. Due to community demand, the [XXX] accepted guests other than those with Down syndrome as well.

Ms. Reid testified that the Child started attending at the [XXX] in May 2012, but that his family did not provide accurate or sufficient information about the magnitude of the Child’s needs or about his behavioural issues. According to Ms. Reid, the only documentation that the Child’s family provided to her about the Child was a completed application form and an eight-page booklet about the Child that described his health information, communication skills, diet, likes and dislikes (see Exhibit 22). Contrary to the evidence of the Child’s mother, Ms. Reid testified that she never received a booklet about the Child called “A Book about Me” that described the Child’s behaviours and triggers, and effective strategies to calm him down.

In cross-examination, Ms. Reid agreed with College Counsel that she had received a Behaviour Crisis Management Plan (Exhibit 11) and the Background and Referral Summary (Exhibit 12) both regarding the Child and dated November 5, 2012; however, she noted that these documents were only received in December 2012 at a meeting at the Child’s school.

Ms. Reid agreed with College Counsel that, as the Member’s mother, she did not want there to be a finding of professional misconduct made against her son. One of her concerns was that a finding of professional misconduct might affect his teaching career. Ms. Reid confirmed that she was not present during the incident that took place in the afternoon of November 25, 2012 at around 4:00 p.m. Her knowledge of the incident came entirely from what she saw on the video and the daily log entry that described it.

Testimony of the Member

The Member testified on his own behalf. At the time of the hearing, he was 33 years old and employed as an elementary teacher. Much of his professional experience over the past decade involved teaching or coaching children, including those with special needs. The Member had worked as a Long Term Occasional Teacher, a summer school teacher with children with Down syndrome, and as a primary school teacher in England, among other things.

The Member testified that, at the material time, he worked part-time at the [XXX]. He had not received any formal training to work with individuals with [XXX] (“[XXX]”). Prior to working with the Child, the Member had no experience working with [XXX] guests at the [XXX]. During cross-examination, however, College Counsel took the Member through his CV (Exhibit 33) and highlighted a number of the Member’s experiences. The Member agreed that he attended an Individual Education Program workshop in 2009, and a Child Centred Learning program and Child Protection Training in 2012. In 2009-2010, the Member worked with a program in which he did activities with aboriginal youth who had behavioural or environmental challenges and who lived in foster homes. From 2009-2014, the Member volunteered with the DSAP. He was a summer school teacher at the Down Syndrome Summer School from 2007-2012. In this role, he was required to develop and implement goals tailored to the students’ individual needs and abilities, among other things. After completing his Bachelor of Education degree in 2010, the Member completed an additional qualification in Special Education (Part 1) in 2011. All of these experiences preceded the incident that occurred with the Child on November 25, 2012.

The Member testified that the first time that he worked with the Child was on September 30, 2012. The second time that he worked with the Child was on the weekend of November 24-25, 2012, which is when the incident captured in the video evidence occurred. The only other times that the Member worked with the Child were on December 22, 2012 and May 10-11, 2013. The Member testified that the Child did not have any meltdowns during these two subsequent visits and he did not believe that the Child regarded him any differently following the incident on November 25, 2012.

The Member watched the video evidence while testifying, and he provided explanations for his behaviour depicted in the videos. According to the Member, the Child had had meltdowns on November 24, 2012 and at 2:40 p.m. on November 25, 2012, prior to the incident captured on the videos, which happened around 4:00 p.m. Generally, the Member testified that he had attempted to distract the Child so that his meltdowns would de-escalate, and that he did not intend to provoke the Child.

The Member testified that there may have been other strategies to manage the Child’s outbursts, but he believed that what he did at the time of the incident was appropriate. He noted that the Child’s behaviour was very challenging and unpredictable, that he had only worked with the Child on one occasion before the weekend of the incident in question, that he had no formal training to work with children with [XXX], and that he did his best to de-escalate the Child’s behaviours. The Member was clear that he was not trying to provoke or antagonize the Child.

College Counsel cross-examined the Member about his written response to the College investigation dated July 8, 2015 (Exhibit 37). Among other things, the Member wrote that the police and the CAS conducted investigations but laid no charges. However, the Member agreed with College Counsel that he received a letter from the CAS dated February 2, 2015, indicating that the CAS verified concerns of allegations of risk of harm (see Exhibit 39). The Member did not include this information in his response to the College’s investigation.

Overall, the Committee found the Member to be a credible witness who gave his evidence in a forthright and detailed manner. He was firm in his denials and was willing to accept that he could have done some things better in the circumstances presented on the day in question. While the Member obviously has an interest in the outcome of these proceedings, the Committee generally accepts his testimony as truthful and consistent with the other evidence in this proceeding. The Member was able to give thoughtful explanations for the reasoning of the actions he took based on his training and experience working with other children with learning difficulties. He did not outright deny suggestions. The Member was sincere, composed and did not give his evidence in a nervous or aggressive manner. He was largely unshaken in cross-examination and remained firm in the evidence he had given.

EVIDENTIARY RULINGS

During the course of the hearing on the merits, the parties raised three legal issues regarding the admissibility of hearsay evidence and the admissibility of expert evidence:

1. On May 22, 2018, the Committee rendered an oral decision refusing to admit the hearsay evidence of Jeanette Cleveland, which College Counsel sought to introduce through the testimony of the Child’s mother.

2. On May 23, 2018, the Committee rendered an oral decision refusing to admit the expert evidence of Rania Ghobrial, which Member’s Counsel sought to introduce.

3. On September 25, 2018, the Committee rendered an oral decision allowing College Counsel to use Exhibit J to cross-examine Debra Reid. Exhibit J is a report from the President of the DSAP dated September 28, 2014, which was the result of an investigation into complaints received regarding the DSAP, its Executive Director at the time (Debra Reid), and staff including the Member.

The Committee’s reasons for these decisions follow.

(1) Admissibility of Hearsay Evidence

The Member’s Position

On May 22, 2018, College Counsel asked the Child’s mother what Ms. Cleveland told her about the circumstances surrounding the incidents captured in the video (i.e. what happened off-camera and in the moments leading up to the incidents captured on video). Member’s Counsel objected to the admissibility of this evidence on the basis that it was hearsay. Member’s Counsel submitted that it would violate the principles of natural justice and the Committee’s duty to act fairly if the Committee were to admit this hearsay evidence.

Member’s Counsel acknowledged that the Committee is not bound by the same strict rules of evidence that apply in formal court proceedings, but submitted that administrative tribunals (like the Discipline Committee) must still act consistently with the principles of natural justice and the duty of fairness. Member’s Counsel noted that, although the duty of fairness is flexible, variable, and context-dependent, the Supreme Court of Canada, in Baker v. Canada (Minister of Citizenship & Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (“Baker”), set out five factors that are relevant to determining the content of fairness. Member’s Counsel submitted that three of the factors had particular relevance in this case.

First, Member’s Counsel submitted that the closer the administrative process is to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. Member’s Counsel argued that discipline hearings at the College are very close to judicial decision-making, in that they are formal, adversarial processes where parties can be represented by legal counsel and where direct and cross-examination of witnesses occur, followed by legal argument.

Second, Member’s Counsel submitted that greater procedural protections are required when there is no appeal procedure or the decision determines the issue and further requests cannot be submitted. Member’s Counsel argued that there is no internal appeal procedure available at the College (although members may appeal to the Divisional Court) and given the absence of an internal appeal process at the College, the Member is entitled to significant procedural protections.

Third, Member’s Counsel submitted that the more important or the greater impact the decision has, the more stringent are the procedural protections. Member’s Counsel argued that this is a significant factor in the Member’s case. As stated by the Supreme Court of Canada in Kane v. University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113, “A high standard of justice is required when the right to continue one’s profession or employment is at stake… A disciplinary suspension can have grave and permanent consequences upon a professional career.” Member’s Counsel indicated that the Member is a young teacher who is attempting to establish his career in the teaching profession, and therefore deserves stringent procedural protections.

Member’s Counsel further submitted that the right to call witnesses and to cross-examine them is an important part of the procedure protected by the duty of fairness. If Ms. Cleveland’s evidence was introduced through the Child’s mother, the Member would not have the opportunity to cross-examine Ms. Cleveland or to test her evidence. The inability to cross-examine a witness would be contrary to the principles of procedural fairness. Member’s Counsel submitted that, in a disciplinary hearing where the Member’s reputation and livelihood is at stake or where issues of credibility arise, the right to cross-examine is significant. Member’s Counsel submitted that the use of hearsay to prove fundamental allegations would offend the rules of natural justice and procedural fairness.

Member’s Counsel presented three cases in which courts have found that the admission of hearsay evidence breached the rules of natural justice and procedural fairness. First, Re B and Catholic Children’s Aid Society, 1987 CanLII 4187 (ON SCDC), involved an alleged sexual assault on a child. The child was not produced as a witness by the Society at the hearing because, according to counsel at the appeal, the child’s story had changed. The court concluded that a tribunal’s admission of hearsay evidence of the child through a social worker amounted to a denial of natural justice.

Second, Member’s Counsel presented Michayluk v. Menke Holdings Ltd., 1998 CanLII 13729 (SK QB), at para. 12, for the proposition that, if hearsay evidence is being put forward as proof of controversial facts, then the affected party should at least be given an opportunity to rebut that hearsay evidence (i.e. by cross-examining the source of the hearsay). Member’s Counsel submitted that the Member denied all of the allegations, including those based on information received from Ms. Cleveland. Accordingly, if the College wished to proceed with these allegations, then Ms. Cleveland should have been called to testify so that she could be cross-examined and thereby her evidence could be fairly tested.

Third, Member’s Counsel presented Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC) (“Kalin”), in which the Divisional Court quashed a decision of this College’s Discipline Committee, in part because of errors relating to procedural fairness and natural justice. The panel of the Discipline Committee in Kalin had improperly relied on transcripts of a prior criminal proceeding involving the member, rather than having a witness provide viva voce evidence before them. Although the rules of procedure (at the time) allowed the Discipline Committee to accept transcripts of criminal proceedings as evidence, the Discipline Committee was obliged to consider all of the relevant circumstances before doing so, which it did not do. The Divisional Court found that it would therefore prejudice the member to admit the transcripts rather than requiring the alleged victim to testify before the Discipline Committee.

Ultimately, Member’s Counsel submitted that the hearsay evidence of Ms. Cleveland is the only evidence in support of certain heads of misconduct alleged in the Notice of Hearing, including the serious allegations of physical abuse. If the Committee were to admit this hearsay evidence, it would be extremely prejudicial to the Member because he would be unable to test the truth of this evidence through cross-examination. Moreover, the Child’s mother received the information from Ms. Cleveland approximately four years before the hearing of this matter. Member’s Counsel submitted that the Committee ought to consider this significant passage of time, which affects the reliability of the hearsay evidence. Member’s Counsel urged the Committee not to simply admit all of the evidence and to then determine its appropriate weight at the conclusion of the hearing. Rather, Member’s Counsel submitted that it would be more appropriate for the Committee to determine the issue of the admissibility of hearsay evidence at the outset, when the admissibility of the evidence was challenged.

The College’s Position

College Counsel submitted that the Member’s case differs from the jurisprudence presented by Member’s Counsel because the College summonsed Ms. Cleveland but she refused to attend the hearing in order to testify.³ The next best available evidence was therefore the hearsay evidence that the College sought to introduce through the Child’s mother.

According to College Counsel, the legislative framework that governs discipline hearings permits the admission of hearsay evidence. Moreover, College Counsel submitted that panels of the Discipline Committee routinely admit hearsay evidence. In support of this position, College Counsel presented Ontario College of Teachers v. O’Shea, 2016 ONOCT 84, in which a finding of physical abuse was made based solely on hearsay evidence. College Counsel noted that the hearsay evidence it sought to introduce in the Member’s case was not the only evidence presented in order to prove the allegations in the Notice of Hearing. The College also presented video evidence that, in the College’s submission, captured the Member’s mistreatment of the Child, and direct evidence from Child’s mother who testified about the events at issue in this matter.

Advice of Independent Legal Counsel

Independent Legal Counsel explained to the Committee what hearsay evidence is and informed the Committee of the factors to consider when determining the admissibility of hearsay evidence. According to Independent Legal Counsel, hearsay evidence is an out-of-court statement admitted for the truth of its contents. In the Member’s case, the hearsay evidence has yet to be heard, but it can be assumed that it involves some off-camera conduct that Ms. Cleveland observed around the same time as she filmed the video of the Member and the Child’s interactions. The hearsay evidence may relate to the Member’s alleged physical abuse of the Child.

Independent Legal Counsel advised the Committee that it can admit hearsay evidence in accordance with section 15 of the SPPA, whereas hearsay evidence is presumptively inadmissible in court. When determining whether to admit hearsay evidence, the Committee was advised to consider the necessity and reliability of the evidence. With respect to necessity, Independent Legal Counsel advised the Committee to consider whether that threshold had been met, given that Ms. Cleveland was summonsed and refused to testify but the College did not go so far as to compel her to attend. With respect to reliability, the Committee was advised that the inability of the Member to cross-examine Ms. Cleveland is a significant factor, but it is not the only factor to consider. For instance, other evidence corroborating Ms. Cleveland’s hearsay evidence might satisfy the Committee that the hearsay evidence is sufficiently reliable. This finding can only arise when the corroborative evidence, considered as a whole and in the circumstances of the case, establishes that the only likely explanation for the hearsay statement is the declarant’s truthfulness about the material aspects of the statement.

Reasons for refusing to admit the hearsay evidence with respect to Ms. Cleveland

The Committee refused to admit the hearsay evidence of Ms. Cleveland through the Child’s mother. While the Committee had the authority to admit hearsay evidence in accordance with section 15 of the SPPA, it did not believe that it would be appropriate to admit this hearsay evidence given the circumstances of this case.

The Committee accepted the position of Member’s Counsel that the Member is entitled to significant procedural protections in this case. The Committee arrived at this determination by applying the facts of this matter to the relevant criteria set out in Baker. First, hearings before the College’s Discipline Committee are formal, quasi-judicial proceedings. Discipline hearings are adversarial in nature, experienced legal counsel represent the parties, and hearings involve the direct examination and cross-examination of witnesses, and legal argument. Accordingly, the Member is entitled to procedural protections similar to those in judicial proceedings. Second, the Committee’s decision may have significant consequences for the Member. The Member’s livelihood is at stake, to the extent that his ability to continue working in a position that requires him to hold a certificate of qualification and registration may be affected by the outcome of this matter. Therefore, stringent procedural protections are required in this case.

The Committee also considered the necessity and reliability of Ms. Cleveland’s hearsay evidence. The Committee did not conclude that the hearsay evidence in this matter is necessary, because the College has not exhausted its recourses in securing Ms. Cleveland’s testimony. The College summonsed Ms. Cleveland, but did not compel her to attend following her refusal to testify. It is therefore not necessary to receive her evidence through the Child’s mother.

The Committee had concerns about the reliability of Ms. Cleveland’s hearsay evidence. Admission of the hearsay evidence despite those concerns would have an unduly prejudicial effect on the Member. The Committee’s most significant concern is that the Member will be unable to cross-examine Ms. Cleveland in order to test the reliability of her evidence. As shown in the authorities presented by Member’s Counsel, the right to cross-examine is a hallmark of judicial and administrative proceedings. The right to cross-examine is even more important in decisions whose outcomes will have significant consequences, and where the hearsay evidence relates directly to controversial facts. Both are true here.

This case involves very serious allegations, including physical abuse, which should not be proven through hearsay evidence of questionable reliability. As noted in Ontario College of Teachers v. Odjig, 2017 ONOCT 93, at p. 59: “[a]llegations of physical abuse are very serious and given the consequences of a finding of physical abuse, the Committee must ensure that the evidence is of a sufficient quality and quantity to justify such a finding.”

Other factors also raise questions about the reliability of the hearsay evidence. First, approximately four years have passed since Ms. Cleveland apparently presented the video to the Child’s mother. The passage of a significant amount of time, and the corresponding consequences for memory and recall, raises serious concerns about the reliability of the evidence.

Second, Ms. Cleveland’s motivations for releasing the video are unclear. The Committee has received no explanation for why Ms. Cleveland waited approximately two years to present the video to the Child’s mother, and there is no evidence before the Committee that she did anything with the video during that period.

Third, Ms. Cleveland’s failure to testify before the Committee, despite having been summonsed by the College, calls into question the reliability of her evidence. While the Committee acknowledges that a witness may decide not to attend a hearing for a number of reasons and does not go so far as to draw an adverse inference, Ms. Cleveland’s absence in the circumstances of this case casts some doubt as to the reliability of her evidence.

(2) Admissibility of Expert Evidence

On May 23, 2018, Member’s Counsel sought to introduce the expert evidence of Rania Ghobrial. Ms. Ghobrial has worked with and supported children and adolescents with [XXX] and co-morbid disorders for at least 15 years, including but not limited to persons with Developmental Disabilities, Attention Deficit Hyperactivity Disorder, Sensory Processing Disorder, Anxiety Disorder and Oppositional Defiant Disorder. Member’s Counsel produced an expert report (see Exhibit I) in which Ms. Ghobrial provides her opinion about the Member’s conduct as recorded in the video evidence.

College Counsel objected to the admissibility of Ms. Ghobrial’s expert evidence. The Committee rendered an oral decision on May 23, 2018, finding that Ms. Ghobrial’s expert evidence was inadmissible.

The College’s Position

College Counsel submitted that the Committee should not admit Ms. Ghobrial’s expert evidence. First, College Counsel noted that the College withdrew the allegation that the Member failed to maintain the standards of the profession. This is the only allegation that would have required proof in the form of expert evidence. Second, although the Member has a right to make full answer and defence, this does not mean that the Member has carte blanche to introduce anything that he wants into evidence. Third, College Counsel submitted that this case is simply about the Member’s conduct as captured in the video evidence. Accordingly, the Committee’s factual determination is limited to the issue of whether the Member’s conduct in the video gives rise to a finding of professional misconduct under the remaining heads of misconduct.⁴ College Counsel submitted that expert evidence was not necessary in order for the Committee to make that determination.

College Counsel presented a brief of authorities relating to four issues. First, R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (SCC) (“Mohan”) established the fundamental principles and the legal test for admitting expert evidence. In Mohan, the Supreme Court of Canada outlines the following four criteria to consider when determining the admissibility of expert evidence: 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert.

College Counsel submitted that the primary consideration in this case is the “necessity” criterion. The College argued that expert evidence was not necessary in this case because the Committee is a specialized tribunal that regularly addresses various forms of abuse of students. The issues to be determined in this matter are not outside of the experience and knowledge of the Committee. The College argued that the Committee should not allow an expert to “usurp the functions of the trier of fact” (see Mohan).

The second category of cases sets out the adjudicator’s “gatekeeper” role and the “modern approach” to expert evidence, in which adjudicators have been cautious about introducing expert evidence into the proceedings. The adjudicator’s “gatekeeper” function is described in Decision No. 2106/03, 2006 ONWSIAT 2743 and Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 (“Greyhound”). In Decision No. 2106/03, the tribunal cited the Supreme Court of Canada’s explanation of the adjudicator’s “gatekeeper” function in R. v. J.‑L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28:

The Court has emphasized that the trial judge should take seriously the role of “gatekeeper”. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.

Similarly, the Ontario Court of Appeal recognized in Greyhound the adjudicator’s “more robust gatekeeper role in the admission of expert evidence” (at para. 37). The court stated that “unnecessary expert evidence distracts the trier of facts from the issues at hand, complicates the proceeding, prolongs the trial and increases the cost of litigation” (at para. 38). The court cited a passage from the Supreme Court of Canada in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 77:

If a trial judge concludes that proposed expert evidence is unnecessary or irrelevant or will distract from the issues to be decided, he or she should disallow such evidence from being introduced.…

College Counsel submitted that there is no “bright line” to determine whether the subject matter of expert evidence falls within the normal experience of the adjudicator (Greyhound, at para. 41). Accordingly, the tribunal is “best equipped to appreciate the issues in the context of the evidence as it unfolds and to determine the extent to which, if at all, expert evidence is required to assist the trier of fact in the disposition of the issues” (Greyhound, at para. 42).

College Counsel submitted that the Committee does not require expert evidence to determine that the Member’s conduct in the video evidence was abusive. His conduct is precisely the type of abusive behaviour that the Committee addresses on a regular basis.

The third category of cases presented by College Counsel consists of prior decisions of the College’s Discipline Committee in which the same heads of misconduct as those alleged in the Member’s case were proven without the use of expert evidence: Ontario College of Teachers v. Foucault, 2015 ONOCT 22 (“Foucault”); Ontario College of Teachers v. Luke, 2016 ONOCT 33; Ontario College of Teachers v. O’Shea, 2016 ONOCT 84; and Ontario College of Teachers v. Sullivan, 2017 ONOCT 41, affirmed in 2018 ONSC 942 (ON SCDC). College Counsel submitted that these cases confirm that expert evidence is not necessary in order for the College to prove the remaining heads of misconduct alleged in the Notice of Hearing. The College highlighted Foucault, in particular, which involved the mistreatment of high-needs children with serious medical conditions. College Counsel submitted that the Member’s case is similar to prior cases before the Committee in which expert evidence was not required.

The fourth category of cases presented included appellate decisions addressing the specialized nature of administrative tribunals, which eliminates the need for expert evidence. For example, in Sazant v. The College of Physicians and Surgeons, 2011 ONSC 323 (ON SCDC) at paras. 264 and 269, the Divisional Court found that the determination of whether conduct is disgraceful, dishonourable or unprofessional was within the specialized expertise of the tribunal and expert evidence was not necessary.

College Counsel submitted that the Committee does not require expert evidence in order to make findings under each of the heads of misconduct alleged in the Notice of Hearing, other than subsection 1(5) of Ontario Regulation 437/97, which was withdrawn.

College Counsel submitted that Ms. Ghobrial’s expert report is not necessary and that her expert evidence should therefore not be admitted. In her report, Ms. Ghobrial provided her opinion of the ultimate issues before the Committee (e.g. whether the Member abused the Child verbally, physically, psychologically or emotionally), which the College submitted would usurp the Committee’s function as the trier of fact. Moreover, Ms. Ghobrial improperly provided legal advice in her report, although she is not a legal expert, and she mistakenly referred the Committee to an irrelevant piece of legislation. In addition, College Counsel submitted that the majority of Ms. Ghobrial’s report contained her interpretation of the Member’s intentions, as inferred by her viewing of the video evidence. According to the College, Ms. Ghobrial was in no position to interpret the Member’s intentions. Finally, College Counsel submitted that much of Ms. Ghobrial’s expert report consisted of a “narration” of the video evidence, which is of no assistance to the Committee who had the opportunity to watch the video themselves.

The Member’s Position

Member’s Counsel filed a factum pertaining to the admissibility of expert evidence and made oral submissions. The Member’s position is set out succinctly at paras. 1-3 of the factum:

1. The Member respectfully submits that the proposed expert’s evidence of Ms. Rania Ghobrial ought to be admitted by the Committee. The admission of such expert’s evidence is integral to the ability of the Member to present a reasoned defence to the allegations of professional misconduct raised against him.

2. The admission of such expert’s evidence moreover is required to assist the Committee in assessing appropriately the specific acts and conduct of the Member which give rise to the alleged professional misconduct. Such assistance is necessary to inform, in a contextualized manner, the circumstances of unfolding events and concerns in a highly specialized field of care and management of a [XXX] special needs child, outside the regular domain of the educational sector.

3. The proposed expert’s evidence by Ms. Ghobrial will help establish contextually that: the Member’s conduct on November 25, 2012, respecting the subject child – who is [XXX] with [XXX], was neither inappropriate nor harmful for such child, and was consistent with or not detrimental to his care needs; and such child’s unfolding behaviours bore little or no relation to the Member’s conduct on that date.

In oral submissions, Member’s Counsel agreed with the legal test for admissibility of expert evidence set out by College Counsel, and acknowledged panels of the Committee often have the necessary expertise to make decisions about members’ conduct. However, Member’s Counsel submitted that this case is exceptional for a number of reasons. First, the alleged conduct occurred outside of the educational setting, in a [XXX]. Second, the child involved has serious medical conditions. Third, there is technical evidence before the Committee, including medical terminology and commentary. Accordingly, the Committee’s task is not simply a matter of reviewing the video evidence and drawing a conclusion; the interpretation of the video is key, and expert evidence is required to reach a proper interpretation.

Member’s Counsel submitted that the evidence of the Child’s mother was ostensibly expert evidence (although the witness was not qualified as such), given that she offered her opinion about how the video evidence should be interpreted and what appropriate care would have looked like. According to Member’s Counsel, it would not be fair to prevent the Member from countering the evidence of the Child’s mother with his own expert’s evidence. Member’s Counsel submitted that Ms. Ghobrial’s expert evidence would be more objective than the evidence of the Child’s mother, and that Ms. Ghobrial’s expertise was necessary to assist the Committee with its determination of whether the Member’s conduct was appropriate or not in the circumstances.

Member’s Counsel presented Odjig in support of the proposition that expert evidence may be required to prove allegations other than the failure to maintain the standards of the profession. Member’s Counsel submitted that Novick v. Ontario College of Teachers, 2016 ONSC 508 (ON SCDC) (“Novick”), at paras. 77 to 80, suggests that standards of the profession (i.e. subsection 1(5) of Ontario Regulation 437/97) and conduct that is disgraceful, dishonourable or unprofessional (i.e. subsection 1(18) of Ontario Regulation 437/97) are closely related. Therefore, expert evidence is required to help the Committee draw its legal conclusions.

Finally, Member’s Counsel submitted that the Member’s case was not straightforward, unlike some of the cases presented by College Counsel where the abuse was obvious. Therefore, expert evidence was necessary to help the Committee arrive at a proper interpretation of the Member’s conduct.

Advice of Independent Legal Counsel

Independent Legal Counsel advised the Committee about the role of expert witnesses and reiterated the admissibility criteria presented by the parties. According to Independent Legal Counsel, witnesses are generally called to testify about their observations; not about their opinions regarding those observations. It is typically for the trier of fact to form opinions and draw inferences and conclusions. Expert evidence, however, is a common exception to this general rule. Where the trier of fact requires assistance in order to understand the significance of the evidence or to determine what inferences can properly be drawn from the evidence, an expert may be permitted to provide their opinion.

Although expert evidence may provide information about a specialized field of inquiry that is likely outside of the experience of the adjudicator, a firm line must be drawn between the role of the expert and the role of the adjudicator to ensure that an expert witness does not usurp the functions of the adjudicator. The closer an expert’s evidence approaches an opinion on an ultimate issue, the stricter this “gatekeeper” function must be.

Independent Legal Counsel advised the Committee that it should focus primarily on the “necessity” criterion set out in Mohan.

Reasons for refusing to admit the expert evidence of Rania Ghobrial

On May 23, 2018, the Committee rendered an oral decision refusing to admit the expert evidence of Rania Ghobrial. The Committee recognizes that the admissibility criteria set out in Mohan and described by the parties must be considered in reaching its decision. The Committee considered the “necessity” criterion in particular, and found that Ms. Ghobrial’s expert evidence is not required in this case.

The Committee had the benefit of reviewing Ms. Ghobrial’s expert report and finds that the report contains no information that the Committee does not have the ability to determine for itself. The Committee accepts the submissions of College Counsel that Ms. Ghobrial was in no position to provide an opinion as to the applicable law or the Member’s intentions. To the extent that Ms. Ghobrial “narrated” the video in her expert report, the Committee finds that this narration is unnecessary because the Committee had the opportunity to view the video evidence itself and to form opinions and draw conclusions based on that evidence.

The Committee found that Ms. Ghobrial opined on the ultimate issues before the Committee throughout her report. For instance, she provided her opinion as to whether the Member abused the Child verbally, physically, psychologically or emotionally. These are the central issues for the Committee’s determination, and the Committee is mindful that it must not let an expert usurp its functions as the trier of fact. There is no information contained in Ms. Ghobrial’s report necessary to assist with the Committee’s determination of whether the Member’s conduct was appropriate or not in the circumstances.

The Committee found that the inferences that it is required to draw in this matter are well within the purview of a panel of the Discipline Committee. The Committee accepts the College’s position and the ample jurisprudential authority (set out above) in this regard. The Committee must determine if the conduct that it has viewed in the video evidence constitutes professional misconduct. The Committee does not accept the Member’s position that the circumstances of this case are so unique that expert evidence is required. Member’s Counsel argued in part that, because the Member’s alleged misconduct took place outside of the educational setting, it was beyond the Committee’s specialized expertise. The Committee rejects this submission. The Discipline Committee regularly considers misconduct that occurs both within and outside the school setting. It is the substance of the Member’s interaction with the Child that matters.

The Committee did not find that the Child’s medical condition places this matter outside of the Committee’s specialized expertise, as submitted by Member’s Counsel. The special needs of students are within the scope of the Committee’s specialized knowledge and expertise. Special education is part of the program of basic certification for members of the profession. As members of the profession, the Committee has the requisite knowledge and expertise to consider the allegations in this case in light of the particular circumstances involving a child with special needs.

The Committee rejects the Member’s position that expert evidence is required to prove allegations other than subsection 1(5) of Ontario Regulation 437/97 (i.e. the failure to maintain the standards of the profession). Novick makes it clear that expert evidence is required to prove allegations under that section, but it does not mandate that expert evidence is required to prove other allegations. There may be cases where expert evidence is required, but this is not one of them. In Odjig, the participant expert’s evidence was only tendered to prove the standards of the profession. Expert evidence was not relied upon to prove any of the other allegations in that matter. There are abundant prior cases before the Discipline Committee in which expert evidence was not required to prove the very same allegations that are set out in the Notice of Hearing in this matter.⁵

(3) Use of the Report of the President of the DSAP during cross-examination

The Member’s Position

On September 24, 2018, Member’s Counsel objected to the admissibility of a report authored by the President of the DSAP. College Counsel sought to cross-examine Ms. Reid by referring to this report, but Member’s Counsel objected because the report consisted of hearsay or double hearsay evidence. For essentially the same reasons that are set out in detail above regarding the inadmissibility of Ms. Cleveland’s hearsay evidence, which College Counsel sought to introduce through the testimony of the Child’s mother, Member’s Counsel submitted that the Committee must not admit the report of the President of the DSAP or use it to cross-examine Ms. Reid (Exhibit J).

In addition to the submissions set out above, Member’s Counsel noted that the hearsay evidence contained in Exhibit J was even less reliable than the inadmissible hearsay evidence of Ms. Cleveland because it constituted double hearsay. The President was not called to testify during this hearing, and his report contains the results of his investigation which was largely based on the second-hand information that he received from Ms. Cleveland.

Member’s Counsel further submitted that the College was improperly splitting its case. During the hearing of its evidence, the College led no admissible evidence regarding the allegation of physical abuse against the Member or regarding the allegation that the Member consumed alcohol or illegal substances while responsible for the care of children or other vulnerable persons. According to Member’s Counsel, it was inappropriate for the College to then attempt to enter hearsay evidence about these allegations during the cross-examination of the Member’s witness. The Committee did not admit hearsay evidence of Ms. Cleveland earlier in the hearing, and Member’s Counsel submitted that it should similarly refuse to admit the double hearsay evidence of the President of the DSAP at this stage of the hearing

In addition, Member’s Counsel submitted that Exhibit J is an unsigned document that the College received from an unidentified source. According to Member’s Counsel, it would be inappropriate for the Committee to admit this document because it has not been authenticated by its author. Member’s Counsel suggested that the document could be a forgery and that there was no way of knowing whether it was reliable without calling the author of the document to testify.

In the alternative, Member’s Counsel submitted that if the Committee were to admit Exhibit J into evidence, they should not rely upon it for the truth of its contents.

The College’s Position

College Counsel submitted that the Committee ought to permit the College to cross-examine Ms. Reid by referring to the report of the President of the DSAP. The College argued that there were two reasons that this document was important: (1) the College should be able to question Ms. Reid about the DSAP’s partial compliance with the request to disclose records to Member’s Counsel; and (2) the College should be permitted to ask Ms. Reid questions about the content of the document given the wide ambit afforded to counsel during cross-examination

With respect to the first issue, the College argued that it should be able to question Ms. Reid about the DSAP’s partial compliance with an order to release records to the Member. In a motion for third party production of records brought by the Member on November 22, 2016, the Member sought the following records from the DSAP, among others:

1(d)(ii) their complete investigative file(s) respecting reports of complaint made by Janette Cleveland (sometimes referred to as “Jeanette” Cleveland) and/or other staff members or community members of Down Syndrome Association of Peterborough at [XXX] in connection with the alleged abusive treatment by the Member of [the Child], and/or with the Member’s purported use of alcohol or illicit drugs while engaged in care services respecting Down Syndrome Association of Peterborough clients, whether such file(s) is maintained in electronic format or by information stored by any other means. Sought materials shall include but not be limited to any such received complaints, investigative notes, the names and contact particulars of all persons that may have been interviewed in any related investigative process, related correspondence, and all interim and/or concluding investigation reports provided to the Board of Directors

(Exhibit 30, at page 6)

Ms. Reid, on behalf of the DSAP, provided the Member with the DSAP’s records on December 7, 2016. However, the Member did not believe that the records provided by DSAP were complete and therefore sought additional records, including records in relation to “Ms. Cleveland’s work at [XXX] and her complaint and the investigation of the complaint for the purpose of determining whether Ms. Cleveland had any ulterior motive in making a complaint against the Member” (Exhibit 30, at page 10).

College Counsel submitted that it was relevant to find out from Ms. Reid why the DSAP did not fully comply with the Member’s request for production of its records. College Counsel noted that the Committee ought to question why Member’s Counsel, who had initially made the formal request for these records, was now seeking to have them excluded from the hearing. According to College Counsel, the explanation is simple: Member’s Counsel has determined that the document is unfavourable to the Member’s case and therefore has objected to its admissibility.

With respect to the second issue, College Counsel submitted that the College ought to be permitted to cross-examine Ms. Reid about the content of the document, because counsel are afforded wide latitude during cross-examination and because it was premature for the Committee to make a ruling on the hearsay objection raised by the Member before having given the College the opportunity to ask a single question about the document. Although College Counsel agreed with the Member’s description of the law regarding the admissibility of hearsay evidence, College Counsel explained that he had no intention of using the document to elicit hearsay evidence that the Committee previously ruled inadmissible. College Counsel submitted that it would be improper for the Committee to determine that the College could not ask questions about a document out of a concern that the questions might elicit a response that constitutes hearsay evidence without first hearing the questions and answers.

With respect to the submission of Member’s Counsel that the document in question has not been authenticated and might be a forgery, College Counsel submitted that this suggestion was speculative. Without having been given the opportunity to ask Ms. Reid a single question about the document, there was no way to determine whether it was authentic or not.

College Counsel urged the Committee to allow the College to cross-examine Ms. Reid by referring to Exhibit J. College Counsel noted that if the questions or answers were improper, Member’s Counsel could object at that point. However, it would be premature for the Committee to make a determination with respect to potential hearsay evidence that has not yet been elicited.

Advice of Independent Legal Counsel

Independent Legal Counsel advised the Committee that there is wide latitude given to counsel conducting a cross-examination. The guiding principle is relevance. According to Independent Legal Counsel, the Committee could theoretically receive the report and admit some portions of it but not others depending on the relevance of those portions.

With respect to the hearsay issue, Independent Legal Counsel advised the Committee that it has the discretion to admit hearsay evidence, but that it is not required to do so. Independent Legal Counsel reminded the Committee that the parties seem to have agreed that it would be a denial of natural justice to admit the hearsay evidence that stemmed from Ms. Cleveland in this case.

Reasons for allowing College Counsel to cross-examine Ms. Reid by referring to the report of the President of the DSAP

Having considered the submissions of the parties and the advice of Independent Legal Counsel, the Committee rendered an oral decision on September 25, 2018 allowing College Counsel to use Exhibit J to cross-examine Ms. Reid. The Committee deferred the decision about marking the document as a numbered exhibit and about the admissibility of the contents of the document until the College’s questions and answers were heard.⁶

In arriving at this decision, the Committee accepted the position of College Counsel that it would be premature to rule on the admissibility of evidence that has not yet been received. Because of the wide ambit given to counsel conducting a cross-examination, the Committee finds that it was appropriate to permit College Counsel to question Ms. Reid by referring to Exhibit J, recognizing that Member’s Counsel was entitled to object to specific questions or answers if they constituted hearsay evidence stemming from Ms. Cleveland’s complaint. Unless or until an improper question is asked of Ms. Reid that elicits the hearsay evidence of Ms. Cleveland, the Committee finds that it would be inappropriate to make a determination about the admissibility of this potential hearsay evidence. The Committee accepts that it is possible for College Counsel to cross-examine Ms. Reid by referring to Exhibit J without asking questions that will elicit hearsay evidence.

Moreover, the Committee finds that it is appropriate for College Counsel to refer to Exhibit J in order to explore the DSAP’s partial compliance with the Member’s request for disclosure of the DSAP’s records. The Committee notes that the parties have agreed that College Counsel could use the document for this purpose, although Member’s Counsel maintained that the College did not need to enter the document as an exhibit in order to do so.

SUBMISSIONS OF COLLEGE COUNSEL ON FINDING

College Counsel’s submissions on the merits of the hearing focused on the events depicted in the videos. College Counsel played the videos again in closing submissions, focusing on the elements of the videos that the College submitted made out each remaining allegation in the Notice of Hearing.⁷ Counsel argued that the videos were the most reliable and compelling evidence about what happened on the day in question.

First, College Counsel submitted that the following portions of the first video established that the Member abused the Child verbally by:

• Saying “Here we go, here we go” before the Child had an outburst and screamed;

• Saying “Oh, there we go” after the Child screamed;

• Saying “Would your mom want to see you like this”;

• Saying “I’m not scared of you” to the Child on two occasions; and

• Telling another staff member in a room adjacent to the Child, “After about the seventh sorry that’s when he goes crazy”. College Counsel argued this statement was loud enough that the Child could hear it.

Counsel submitted that the Member’s comments were dismissive, disrespectful and unsupportive of the Child sitting on the ground. He argued that the Member’s comment “Here we go, here we go” was not the Member predicting the Child’s episode. Rather, the Member provoked the Child into an episode.

Second, College Counsel argued that the Member abused the Child physically by placing his hand on the Child’s shoulder and squeezing it. College Counsel argued that the squeeze was observable in the first video.

Third, College Counsel submitted that the Member abused the Child psychologically or emotionally, failed to comply with section 264(1) of the Education Act, committed acts that were disgraceful, dishonourable or unprofessional and engaged in conduct unbecoming a member by:

(i) Saying to the Child “Can I show you what you look like” and then showing the Child a video of himself (the Child) that the Member recorded on his cell phone. College Counsel argued that there was no reason why a teacher should be videotaping a child with [XXX] on the floor having a meltdown;

(ii) Allowing the child to hit himself on the head and body without intervening;

(iii) Allowing the child to hit his head on the floor while the Member was in another room;

(iv) Holding a cup filled with liquid over the child’s head and body;

(v) Reneging on his promise to get the Child juice and cookies after the Child started crying and holding his head. College Counsel argued the Child was holding his head because it hurt;

(vi) Turning off the lights in the room the Child was located in;

(vii) Allowing the Child to hit his arms and legs on the floor in the darkened room while unattended.

College Counsel argued that the Member’s explanations for his behaviour ought to be rejected. He highlighted that the Committee should pay close attention to the imbalance of power extant in the scenes that played out in the video. While some of the Member’s comments might be construed as acceptable in some circumstances, the Member’s insidious tone and body language were telling. The Member was mocking the Child and laughing, as if the Child was not “playing his part in this symphony of sadness.”

College Counsel submitted that the Committee ought to consider the Member’s background when evaluating his evidence and his conduct depicted on the video. He pointed to the Member’s CV (Exhibit 33), in which the Member indicated he had about five years of experience at a Down Syndrome Summer School and three years volunteer experience at the [XXX] prior to this incident. He also received his Special Education – Part One qualification in 2011, the year before the events in question.

College Counsel pointed to a response prepared by the Member in 2015, provided to the College in the course of its investigation (Exhibit 37). In that response, the Member claimed to “not remember the day in question”. College Counsel argued that in light of this assertion, the Committee should find the Member’s detailed 2018 evidence about the day in question suspect.

SUBMISSIONS OF MEMBER’S COUNSEL ON FINDING

Member’s Counsel made extensive submissions on finding. He highlighted that it was essential for the Committee to consider the contents of the videos in context. He cautioned against looking at extracted moments in the video footage outside of the remainder of the evidentiary picture in this case. Counsel pointed out that the Child had been characterized by independent outside organizations as presenting significant behavioural challenges. In particular, there was evidence that the Child had been enrolled in the [XXX] (“[XXX]”) class at his school, which was specially tailored to students with [XXX]. As a result of the Child’s challenging behaviour and difficulty dealing with the [XXX] class environment, he was moved into his own classroom adjacent to the [XXX] classroom. Member’s Counsel referred to this evidence in support of his position that the Child presented unusually challenging behaviours, including aggressive and destructive behaviours. An outside assessment of the Child’s behaviour found that a variety of internal and external factors, or “setting events”, could trigger episodic behaviour. These factors included a wide variety of inputs including the weather, time of day and discomfort with clothing tags.

One of the outside assessments (which was not available to the Member when he encountered the Child) suggested interventions in the escalation to an episodic outburst such as using a calm, quiet tone of voice, calming techniques including deep physical pressure and using visual cues and gestures. Once the Child was in an episode, the assessment recommended making the environment safe and relocating other people. It recommended not under or over-reacting. Planned ignoring was a recommendation, as was giving the Child space and waiting for him to calm. The assessment recommended enforcing behavioural limits.

Member’s Counsel reviewed the [XXX] logs of the Child’s stays in the months leading up to the incident in late November 2012. They indicate that the Child had periodic behavioural episodes with different staff while staying at the [XXX], which were sometimes aggressive. On one occasion, according to the logs, the Child “punched” a staff member in the head, knocking out her hearing aid. Another time, he was kicking and biting and had to be restrained. It appeared that one of the episodes arose out of the Child not having his [XXX] – an important personal item. Counsel argued that sometimes the Child has good days, sometimes he has bad days. He pointed out that the [XXX] was not present in the videos at issue and suggested that might have been a cause of the Child’s behaviour on the day in question.

Member’s Counsel urged the Committee to accept the Member’s evidence. He was inexperienced and was doing the best he could with the limited tools available to him. Counsel argued that the Member’s conduct that the College points to as inappropriate is equally consistent with the Member’s attempts to redirect the Child from episodic behaviour, to distract him or to calm him down.

Counsel urged the Committee to reject the Child’s Mother’s testimony critical of the Member’s conduct captured on video.

Member’s Counsel forcefully rejected College Counsel’s suggestion that the Member’s limited experience with special education training was evidence that the Member knew better in his encounter with the Child. Member’s Counsel highlighted that the limited training the Member had undertaken by the time in question would not have adequately prepared him with strategies responsive to the severe and aggressive behavioural patterns presented by the Child.

Member’s Counsel pointed the Committee to a number of cases in support of his arguments, including Kalin, Novick, Odjig, F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, Carruthers v. College of Nurses of Ontario, 1996 CanLII 11803 (Ont. Div. Ct.), Ontario College of Teachers v. Awachie, 2018 ONOCT 26, Ontario College of Teachers v. Rice, 2014 ONOCT 89, and Ontario College of Teachers v. Charette, 2012 ONOCT 8.

REPLY SUBMISSIONS OF COLLEGE COUNSEL ON FINDING

In reply, College Counsel emphasized that the College was not alleging that the Member caused the Child’s episodes and thereby committed professional misconduct. The College is alleging that the Member committed professional misconduct because he said and did certain things in relation to the Child that independently give rise to a conclusion of professional misconduct, regardless of the Child’s reaction to the Member. Counsel submitted that the Committee should look at what the Member said and did in the video and decide whether or not that amounts to a finding of professional misconduct. The extent of the Child’s aggressive or destructive behaviour does not inform whether or not the Member committed professional misconduct through his words and actions.

As noted above, College Counsel submitted that the College was not relying on the Child’s mother’s interpretation of the videos or her opinions about what ought to have been done in response to the Child’s episode.

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

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request in light of College Counsel’s submission that there was no reasonable prospect of obtaining a finding in relation to this allegation.

Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Committee found that the College did not prove, on a balance of probabilities, any of the remaining allegations of professional misconduct set out in the Notice of Hearing dated May 25, 2016.

REASONS FOR DECISION ON FINDING

The Committee has carefully reviewed the evidence and submissions presented in this matter. The Committee had the benefit of viewing the video evidence in this case and hearing evidence from a number of witnesses, including the Member. 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 do not give rise to a finding of professional misconduct.

Factual Findings

5(a): The College did not prove that the Member antagonized or taunted the Child

Evidence

The Videos

College Counsel pointed to several events in the videos as evidence that the Member antagonized or taunted the Child.

First, from 0:06 to 0:12 of the first video, the Child can be heard repeatedly saying “I’m sorry, I’m sorry” in the apparent lead up to an episode. At the same time, the Member can be heard saying “Here we go, here we go”. The Child screams and cries at 0:15 to 0:17, at which time the Member says “Oh, there we go”. Between 0:25 and 0:29 of the first video, the Child says that he wants to go home, and in response the Member asks the Child, “Okay well, does your mom want to see you like this?”

Second, throughout the first portion of the video, mentioned immediately above, the Member appears to be recording the Child with his own cell phone camera. During this time, the Child has an episode, and is screaming and crying. From 0:45 to 1:56 of the first video, the Member asks the child “Can I show you what you look like” and shows the Child the video that the Member recorded on his cell phone. While watching the video, there are moments when the Child is quietly watching the video and moments where he screams and cries.

Third, on two occasions in the first video, the Member tells the Child “I’m not scared of you.”

Fourth, after the Member finished showing the Child the video that he (the Member) had recorded on his cell phone, the Member walked towards Ms. Cleveland in an adjoining room. The Member disappears off-camera. The Child starts to have another episode, saying “I’m sorry” repeatedly, and the Member can be heard off-camera saying “After about the seventh sorry is when he starts going crazy.” The statement can be heard clearly on the video recording. It is unclear whether the child could hear this statement. After the Member makes the statement, the Child screams and cries.

The Member

The Member denied the allegations set out at paragraph 5(a) of the Notice of Hearing. He testified that he did not make the “is that all you have big boy” comment alleged at paragraph 5(a)(i) and, as set out below, he testified that he was not trying to antagonize or taunt the Child by making the “I’m not scared of you” comment alleged at paragraph 5(a)(ii).

The Member was shown the video evidence during his testimony and explained that he made a number of comments in an attempt to de-escalate the Child’s behaviours, but that he was not trying to provoke the Child. For instance, the Member testified that, after the Child said “I’m sorry, I’m sorry” during the first 15 seconds of the first video segment, the Member responded by saying “here we go, here we go”, then by yelling “ahhh” and saying “you missed me on that one; where were you?” in order to distract the Child. The Member acknowledged that he could have used other techniques to de-escalate the Child’s behaviour, but he did not think that those would have been successful at the time. He further testified that he was not trying to provoke or taunt the Child.

At approximately 0:25 of the first video segment, the Child said that he wanted to go home, to which the Member responded, “Okay well, does your mom want to see you like this?” According to the Member, he did not intend to suggest that the Child would get in trouble if his mother saw him behaving that way; he was merely trying to get the Child to think about his behaviour and change it.

At approximately 0:45 into the first video segment, once the Child had calmed down from an outburst seconds earlier, the Member showed the Child a cellphone video that he had just recorded during the Child’s earlier outburst.⁸ The Child then had another outburst. The Member testified that his intention was simply to use the video as a teaching tool so that the Child could learn from his previous inappropriate behaviour. The Member acknowledged that he might have misjudged the degree to which the Child was capable of learning in this way. However, the Member also testified that he knew the Child liked computers and video games, so he thought that he could relate to the Child by showing him the video of his inappropriate behaviour. The Member maintained that he did not show the Child the video to provoke him.

During cross-examination, the Member agreed with College Counsel that it was unusual for a [XXX]r to take a video of a guest, and that it was unusual for the Member to take a video of a wailing child.

At approximately 2:15 into the first video segment, the Child repeats the phrase “I’m sorry, I’m sorry” and the Member, who was off-camera, said to his colleagues in the adjacent room that “After about the seventh sorry is when he starts going crazy.” The Child has an outburst shortly after the Member made that comment in which he screams and bangs his head on the floor. The Member testified that he was approximately 15 feet away from the Child when he made that comment. According to the Member, he did not believe that the Child heard the comment and the outburst was a reaction to it. The Member maintained that he whispered the comment in the adjacent room. He explained that his comment might have sounded louder than a whisper in the video because the Member was within one or two feet of the cellphone that was recording the incident.

During cross-examination, the Member disagreed with College Counsel’s suggestion that the Child reacted to what the Member said about him going crazy after the seventh sorry. The Member did, however, agree with College Counsel that the cellphone camera used to capture the videos was able to pick up his voice if he was speaking in the kitchen (while the camera was filming in an adjacent room) or if he was speaking right next to the camera.

In re-examination, the Member confirmed that there was some background noise in the room at the time that the Member said, “After about the seventh sorry is when he starts going crazy.” The Member indicated that the noise was coming from a TV that was approximately six feet away from the Child.⁹

At approximately 4:00 into the first video segment, the Child was in the midst of another outburst in which he was banging his head on the floor and screaming. The Member entered the room through the kitchen and said to the Child, “I’m not scared of you”. The Member testified that he said that to the Child because he believed that the other two female [XXX] were scared of the Child, who had previously struck one of them, Ms. Cleveland. The Member testified that he intended to convey to the Child that he was not scared of him and that he was going to stay there with him to help him work through his outbursts.

Finding

The Committee finds that the College has not proven on the balance of probabilities that the Member antagonized or taunted the Child, as alleged at paragraph 5(a) of the Notice of Hearing.

First, there was no evidence of the Member saying “is that all you have big boy”. The Committee makes no finding in relation to this allegation.

Second, the video evidence factually establishes that the Member said “here we go, here we go” at the very beginning of the first video recording. After the child cries, the Member then says “Oh, there we go”. The Member maintained that these comments were made in an effort to distract the Child. He acknowledged that he could have used other techniques and maintained that he was not trying to provoke or taunt the child. The Committee accepts the Member’s evidence that he made these comments because he was trying to distract the Child from a meltdown. The Committee acknowledges that this strategy was not ideal and generally not good practice. However, the Committee is not satisfied that the Member made these comments to antagonise or taunt the Child into a meltdown. They were not negative and they were not aggressive. They were not, as the College suggests, made in a mocking or laughing tone. Their presentation is consistent with the Member’s stated objective of trying to distract the Child from having a meltdown, even if the technique was not ideal. That the child had a meltdown anyway does not lead to the inexorable conclusion that the Member’s ineffective or misguided distraction technique caused the meltdown or that it was devised as a taunt or antagonism – the heart of this allegation.

Third, the video evidence factually establishes that the Member said “I’m not scared of you” to the Child on two occasions. However, the Committee is not satisfied that in so saying, the Member antagonized or taunted the Child, as alleged in the Notice of Hearing. In both instances, the Member’s tone of voice was normal and his utterances were not cast in a disrespectful or aggressive tone. The Member testified that he made these statements because he believed that the other two female [XXX] were scared of the Child and he wanted to convey that he (the Member) was going to stay there through the outburst. The Committee generally accepts the Member’s evidence about his purpose in making these statements. While the Member, in his testimony, at times portrayed himself in an overly positive light, the Committee is satisfied that the Member did not antagonize or taunt the child. The comments were directed at the Member’s attempt to set boundaries or enforce limits¹⁰ and calm the Child down during his outbursts.

Fourth, the video factually establishes that the Member said, seemingly to the other adults present in a room adjacent to the Child, “After about the seventh sorry is when he starts going crazy.” The Member testified that he did not believe his comment would have been audible to the Child because he whispered it to the other caregivers in the adjacent room. The Committee found that the Member’s evidence on this issue was, at times, problematic. It is clear from the video evidence that the Member was not whispering. However, the College does not allege that the Member committed professional misconduct merely by making the comments he did. The Notice of Hearing alleges that the Member treated the Child inappropriately or failed to provide appropriate care for him by, amongst other things, antagonizing or taunting him. The Committee is not satisfied that the Member treated the Child inappropriately, antagonized or taunted the Child by making the comment that he did. The video evidence confirms the Member’s evidence that the comment was directed at the other adults in the adjacent room. The Member is seen walking towards and past the camera out of shot before making the comment. It was not spoken loudly or directly communicated to the Child. The Committee is not satisfied that the Child was within hearing range of the Member’s comment.

Moreover, the Member’s comment itself is not inherently pejorative. It is plausible that the Member was simply making an observation to his co-workers about the Child’s behaviour. College Counsel suggested that the Member spoke the comment with a sarcastic or mocking tone and this establishes his more nefarious and inappropriate reasons for making it. The Committee cannot agree. The Member’s tone of voice was not aggressive. He was not laughing as he said it. He did not ask his two co-workers for their support in mocking the Child. The ambiguous evidence is insufficient to reach the conclusion sought by the College on the balance of probabilities.

Fifth, the video evidence establishes that the Member asked the Child “Okay well, does your mom want to see you like this?” while the Child was on the ground crying. The Member testified that he was trying to get the Child to think about his behaviour and change it. The Committee accepts the Member’s testimony that he was trying to help the Child understand that his behaviour was unacceptable. The question posed by the Member is not, on its face, problematic or nefarious in the manner suggested by College Counsel. While such a question may or may not be productive in the context of calming down a child with [XXX], it is not out of place in many education settings. The Committee is not satisfied that the Member taunted or antagonized the Child by saying it.

Sixth, the video evidence establishes that the Member recorded the Child with his cell phone and then played the video for the Child after asking him “Can I show you what you look like?” The Child watches the video as the Member plays it. There are moments when the Child is quietly watching the video and moments where he screams and cries.

The Committee accepts the Member’s evidence that the purpose of showing the Child the video recording was an attempt to modify his behaviour using the video as a teaching tool. It was not an attempt to ridicule the Child. It is unclear on the evidence whether the showing of the video to the Child had the effect of antagonizing him. While watching the video on the Member’s phone, the Child is mostly quiet and engaged with the video, although he periodically has brief outbursts. The Committee acknowledges that this type of technique is not a best practice. The Member also acknowledged as much in his evidence. However, the Committee is not satisfied that showing the Child the video taunted or antagonized him.

In summary, the Committee finds that the College did not prove that the Member antagonized or taunted the Child.

5(b): The College did not prove that the Member placed his knees on the chest of the Child

The College called no evidence to substantiate this allegation. The Member denied placing his knees on the Child’s chest. The Committee therefore finds that this allegation was not established.

5(c) and (d): The College proved that the Member held a glass of liquid over the Child’s head but did not prove that the Member suggested or implied he would tip the glass of liquid onto the Child

Evidence

The Video

At approximately 2:45 into the first video segment, the Member appears to be holding a green plastic cup, tilted at an angle towards the Child. The Member walks towards the Child, and holds the cup out towards him. The Member said to the Child, “Do you want some water to cool you down?”

This action taken by the Member immediately follows the Child having an episode which included the Child hitting his head on the floor.

The Member

The Member testified that he had no intention of tipping a glass of water onto the Child, as alleged at paragraphs 5(c) and (d) of the Notice of Hearing. The Member was shown the video evidence of this alleged incident during his testimony and he provided his interpretation. According to the Member, the cup was not tilted near the Child’s head as alleged in the Notice of Hearing. The Member testified that he was approximately two feet away from the Child at the time, and that the cup would have been closer to the Child’s lap or his feet because he was trying to show the Child the cup to see if he wanted any juice or water. The Member testified that he did not intend to tip the cup of water onto the Child. According to the Member, he was simply trying to distract the Child by asking him if he wanted something to drink and by showing him the cup.

During cross-examination, the Member agreed with College Counsel that he said to the Child, “Do you want some water to cool you down?” and not “Do you want some water to drink?” The Member maintained that he was trying to show the Child the green cup in his hand, even though he tilted the cup at a 45-degree angle towards the Child. The Member disagreed with College Counsel that he was 8-12 inches away from the Child at the time, and maintained that he was two feet away from the Child.

Finding

The Committee finds that the Member held a glass of liquid over the Child’s head as alleged in paragraph 5(c) of the Notice of Hearing but does not find that the Member suggested or implied he would tip the glass of liquid onto the Child, as alleged at paragraph 5(d).

The first video clearly establishes that the Member held a glass filled with liquid while he stood next to the Child, who was sitting on the floor. The video shows the Member ask the Child if he would like a drink of water. While asking that question, the Member moves the glass closer to the child and holds it at an angle.

College Counsel strenuously argues that these facts demonstrate that the Member was threatening or suggesting he would pour the glass of water onto the Child. The Committee is unable to agree with this characterization. On its face, the Member’s communication to the Child inquires if he (the Child) would like a drink of water. The angling of the cup, in conjunction with that question, suggests that the Member was showing the cup of water to the Child in conjunction with the question. There is simply no evidence to support College Counsel’s more nefarious interpretation. The Child never looks up at either the Member or the cup while the question is being posed and the glass angled. The Member’s evidence was that he was showing the cup of water to the Child and resisted alternative suggestions in cross-examination.

To read a sinister motive into the Member’s question and the angling of the cup would require the Committee to reject the Member’s explanation and reach a speculative conclusion. There is no basis upon which to do so. The Committee accepts the Member’s explanation. The allegation that the Member suggested or implied he would tip the glass of liquid onto the Child, alleged at paragraph 5(d) of the Notice of Hearing, is not established.

5(e): The College did not prove that the Member failed to care for or refused to assist the Child, such that the Child hit himself on the head; hit the floor with his feet, arms and head; struck out at the Member; and inflicted self-harm

Evidence

Throughout the videos, during a number of episodes, the Child can be seen to hit himself on the head and hit his feet, arms and head on the floor.

Both the Child’s mother and Ms. Reid acknowledged that during the Child’s other stays at the [XXX] with other [XXX] between 2012 and 2014, he sometimes had significant episodes in which the he screamed, cried, hit, grabbed, bit and scratched staff, threw objects, damaged property, and self-harmed, among other things. Some of these episodes lasted for hours. The Child’s mother agreed with Member’s Counsel that her son showed an increase in aggressive and destructive behaviours in the Fall of 2012. She acknowledged that this was a difficult time for him. At school, where he was part of the [XXX] program, he was moved to his own room next to the [XXX] class due to his challenging behaviour. The Child’s mother also acknowledged that her son had full-blown meltdowns at home and that it was not always possible to prevent them.

Ms. Reid further testified that she had attended a meeting at the Child’s school on December 12, 2012 (after the incident involving the Member in November 2012), during which she received additional documents about the Child, including a Behaviour Crisis Management Plan (Exhibits 11). Among other things, Ms. Reid learned at this meeting that the Child had been removed from his classroom in the [XXX] program in the Fall of 2012 because he required individual attention in his own padded space within the school.

The Member confirmed that he saw the Child engage in the behaviour described at paragraph 5(e) of the Notice of Hearing, but he denied causing this behaviour and failing or refusing to care for the Child.

Finding

The Committee does not find that the Member failed to care for or refused to assist the Child, such that the Child hit himself on the head, hit the floor with his feet, arms and head, struck out at the Member, and inflicted self-harm, as alleged at paragraph 5(e) of the Notice of Hearing.

First, the Committee was satisfied that, contrary to the allegation, the Member reacted quickly to try to distract the Child when he began to hit himself or strike his body parts on the floor. In particular, after the Child began to hit his head on the floor at 2:30 of the first video, the Member quickly returned to the room the Child was in from an adjoining room and told the Child to stop.

Second, the Committee accepts the Member’s testimony that he believed that physical intervention was not necessary in the circumstances of this case to stop the Child from striking his limbs on himself and his head on the ground. The Member testified that the behaviour was not at the extreme end and that he did not feel the Child was in danger. The Child was not destroying anything. The behaviour was something the Child had engaged in in the past. The Member said that he was trying to get the Child to stop the behaviour through distracting him and other methods seen in the course of the videos. Moreover, the self-injurious behaviour depicted in the video never lasts more than a couple of seconds. The behaviour starts and finishes too quickly for the Committee to reasonably hold the Member accountable for a failure to intervene.

Third, Counsel for the College asserted that the Member “reneged on [his] promise for juice and cookies when the child starts crying and holding his head (probably because his head is hurt)”. The Committee does not accept this characterization. The Member offered the Child water, juice and cookies in an apparent effort to distract him or calm him down. These strategies initially seemed to work. While the Member is off-camera preparing the juice and cookies, the Child starts crying and banging his head on the ground after looking up and seemingly noticing that Jeanette Cleveland was recording him. The Member calls out from a distance away from the camera, “okay no juice or cookie”. A reasonable inference from this evidence is that the Member was not directly observing the Child during this time and said that the Child could not have juice and cookies because the Child had resumed crying and banging his head on the ground and the Member wanted him to stop. College Counsel’s suggestion that the Member reneged on his promise of juice and cookies or was punishing the Child for crying because he had hurt his head is not one that reasonably arises on the evidence.

5(f): The Member touched the shoulder of the Child

The College alleged that the Member touched the shoulder of the Child and squeezed it and this was evidence of physical abuse. At 0:54 to 1:04 of the first video, the Member places his hand on the shoulder of the Child. In his testimony, the Member admitted touching the Child’s shoulder, but explained that this was only done to provide comfort to the Child.

The Committee finds that the Member touched the shoulder of the Child, but does not find that he squeezed the Child’s shoulder. There is no squeezing motion depicted in the video recording. The Child did not recoil from a painful squeeze by the Member. Instead, the Child was still while the Member’s hand was on his shoulder. The Member’s evidence was uncontradicted. There is no evidentiary basis upon which to conclude that the Member squeezed the Child’s shoulder. The Committee accepts the Member’s explanation that he touched the Child’s shoulder in order to comfort him.

5(g): The Member turned room lights off and left the Child unattended and said “let’s not pay attention to him”

Evidence

Towards the end of the first video segment, the Child is crying and says that he wants to go home. He also tells the Member to “go away.” The Member then says, “Let’s just not pay any attention to him” and turns off the lights in the room the Child was in.

The Member was shown the video evidence during his testimony. At approximately 4:30 into the first video segment, the Member said, “Let’s just not pay any attention to him” and he walked away from the Child. The lights were then turned off shortly after that. The Member testified that this was another strategy that he used to try to get the Child to calm down. He explained that his idea was to let the Child have some time by himself, to have his meltdown, and to then revisit the situation with him. He explained that there was still natural light in the room. Ms. Reid confirmed in her evidence that there were windows in the room where the videos were filmed that provided natural light.

The Member clarified that the Child was not actually left unattended because the Member was in the kitchen, which was adjacent to the room the Child was in, and the other two [XXX] were also nearby. He further noted that it was not very dark when the lights were turned off because it was daytime and the many windows at the [XXX] provided a lot of natural light. The Member testified that the cellphone video did not accurately capture the light levels at the time.

Finding

The Committee finds that the Member turned room lights off and said “let’s just not pay any attention to him”, as alleged at paragraph 5(g) of the Notice of Hearing. However, the Committee also finds that the Member engaged in this conduct as a strategy attempting to control the Child’s behaviour. Moreover, the Committee does not find that the Member left the Child unattended.

First, the video evidence clearly contradicts the College’s theory that the Child was left alone in the room. The Committee heard evidence that one of the individuals assigned to supervise the Child was Jeanette Cleveland. Ms. Cleveland was recording the video from mere feet away from the Child. The camera was pointed directly at the Child. This evidence leads to the undeniable conclusion that Ms. Cleveland was supervising the Child from feet away during the entire period the College alleges that the Member abandoned the Child in the darkened room. The Member may well have been in a different room, but Ms. Cleveland was right there watching over the Child. On the evidence, it was not the Member’s sole responsibility to supervise the Child one hundred percent of the time.

Second, the Committee accepts the Member’s evidence that he turned off the lights in the room and said “let’s not pay any attention to him” as strategies to calm the Child down. In the Behaviour Crisis Management Plan (Exhibit 11), “planned ignoring” is recommended as a strategy for caregivers to employ in response to this Child’s behaviour. Even though the Member had not seen this document at the time of the incident under examination, his conduct is consistent with the strategy that professionals later recommended.

Third, the Committee also accepts the Member’s evidence that even though the lights were turned off, there was plenty of natural light in the room. The Member’s evidence was confirmed by Ms. Reid and several large bright windows can be seen in the video recording.

6: The College did not prove that the Member consumed alcohol or illegal substances while responsible for the care of children or other vulnerable persons

The College called no evidence to substantiate this allegation. The Member denied having ever consumed alcohol or illegal substances while caring for children or vulnerable persons. The Member clarified that he had taken a high-functioning, 22-year-old male individual with Down syndrome to a baseball game, and that the individual’s mother had given the Member money to buy gas, food and a beer. The Member and the other individual each had a beer at the baseball game. Ms. Reid testified that she never witnessed the Member consuming alcohol or illegal substances while working at the [XXX] and that she never received any complaints of such conduct.

The Committee finds that the College did not prove the allegation contained in paragraph 6 of the Notice of Hearing.

Legal Conclusions

The Member is not guilty of professional misconduct

The Committee finds that the College did not prove on a balance of probabilities that Member’s conduct amounts to professional misconduct under the alleged heads of misconduct.¹¹

1) The Member did not abuse a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7)

The Committee finds that the Member did not verbally abuse the Child. College Counsel submitted that the Member abused the Child verbally by:

• Saying “Here we go, here we go” before the Child had an episode and screamed;

• Saying “Oh, there we go” after the Child screamed;

• Saying “Would your mom want to see you like this”;

• Saying “I’m not scared of you” to the Child on two occasions; and

• Telling another staff member in a room adjacent to the Child, “After about the seventh sorry that’s when he goes crazy”. College Counsel argued this statement was loud enough that the Child could hear it.

For the reasons given above, the Committee was satisfied that the video evidence established that each of these statements were made by the Member. However, the Committee is not satisfied that the statements amount to verbal abuse.

First, the Notice of Hearing particularized these statements as taunts or attempts to antagonize the Child. For the reasons given above, the Committee found that the Member did not taunt or antagonize the Child by making these statements.

Second, the Committee accepted the Member’s evidence about his purpose in making these statements. As articulated above, the Committee largely accepted the explanations of the Member that his conduct was directed at distracting the Child from his meltdowns and otherwise trying to respond to and control the Child’s difficult behaviours.

Third, the Committee is satisfied that even where the Member’s strategies fell flat or did not work the way he hoped they would, the Member made the statements he did in pursuit of the legitimate objectives he testified to. College Counsel argued that the Member was experienced or trained in dealing with children with special needs. The Committee is not satisfied this is the case. While the Member had completed his Special Education, Part 1 additional qualification and had volunteered with various organizations providing services to children with special needs, the Committee is not satisfied that either training or experience prepared the Member to deal with the [XXX] he encountered on November 25, 2012, such that he should be held to the high standard suggested by College Counsel.

Fourth, the Member’s conduct was sometimes not ideal, but it does not amount to professional misconduct. The Member was a relatively new teacher in an environment where there was no immediate access to mentorship or the expertise of senior teachers and he was dealing with a child who presented with [XXX]. The Member’s lack of experience manifested in strategies that were not always best practices. However, they do not rise to the level of conduct that is sanctioned by this Committee.

2) The Member did not abuse a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1)

The Committee finds that the Member did not abuse the Child physically. Above, the Committee found that the video evidence establishes that the Member placed his hand on the shoulder of the Child. The Member admitted touching the Child’s shoulder, but explained that this was only done to provide comfort to the Child.

The crux of the College’s submission was that the video evidence established that the Member squeezed the Child’s shoulder and this was evidence of physical abuse. Above, the Committee concluded that there was no evidence to support the College’s assertion. There was no squeezing motion depicted in the video recording and the Child did not recoil from a painful squeeze.

The College did not point to any other instances of alleged physical abuse in submissions. The College did not call any evidence to substantiate the allegation of physical abuse in paragraph 5(b) of the Notice of Hearing (alleging that the Member placed his knees on the chest of the Child). The Committee accordingly concludes that this allegation is not established.

3) The Member did not abuse a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

The Committee finds that the Member did not abuse the Child psychologically or emotionally. College Counsel submitted that the Member abused the Child psychologically or emotionally by:

(i) Saying to the Child “Can I show you what you look like” and then showing the Child a video of himself (the Child) that the Member recorded on his cell phone. College Counsel argued that there was no reason why a teacher should be videotaping a child with [XXX] on the floor having a meltdown;

(ii) Allowing the child to hit himself on the head and body without intervening;

(iii) Allowing the child to hit his head on the floor while the Member was in another room;

(iv) Holding a cup filled with liquid over the child’s head and body;

(v) Reneging on his promise to get the Child juice and cookies after the Child started crying and holding his head. College Counsel argued the Child was holding his head because it hurt;

(vi) Turning off the lights in the room the Child was located in;

(vii) Allowing the Child to hit his arms and legs on the floor in the darkened room while unattended.

In its factual findings above, the Committee found that (ii), (iii), (v) and (vii) in the list immediately above were not factually established. Accordingly, they cannot ground a finding of physical or emotional abuse.

The Committee found that the allegation in (i), the showing of the video to the Child, was established, but accepted the Member’s testimony that his purpose in showing the Child the video recording was an attempt to modify his behaviour using the video as a teaching tool. The Committee, and the Member himself, acknowledged that this type of technique is not a best practice. However, Committee was not satisfied that showing the Child the video taunted or antagonized him, as particularized in the Notice of Hearing. The Committee is not satisfied that the Member psychologically or emotionally abused the Child.

The Committee found that allegation (iv), that the Member held a cup of water over the Child, was established. However, as explained above, the Committee was not satisfied that there was evidence to support the College’s contention that the Member threatened to pour water on the Child. The Committee was not satisfied that there was any basis upon which to reject the Member’s innocent explanation – that he was showing the cup of water to the Child to inquire if he wanted a drink. The Committee accepted the Member’s explanation. The fact of holding a glass of water above the child cannot on its own lead to a conclusion that the Member psychologically or emotionally abuse the Child.

The Committee found that allegation (vi), that the Member turned the lights off, was established, however the Committee found that this was not done to psychologically or emotionally abuse the child. The Committee found that there was natural light in the room and further that the Member did not leave the Child unsupervised alone in the dark room. At a minimum, Jeanette Cleveland, another caregiver, was within feet of the Child. The Member testified that he turned the lights off, in part, to try to calm the Child down. The Committee accepted this evidence and found that it was consistent with the strategy of “planned ignoring” subsequently recommended by professionals in their assessment of the Child’s behaviour. The finding that the Member turned the lights off cannot ground a conclusion that the Member psychologically or emotionally abused the Child.

4) The Member did not fail 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 does not find that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. College Counsel relied on the same particulars as those in relation to psychological or emotional abuse in support of this allegation. For the reasons articulated in relation to psychological and emotional abuse, the majority of the factual allegations were not established. Those that remain – the showing of the video to the Child, the holding of the cup of water, and turning off the lights – do not establish that the Member failed to comply with the Education Act.

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 aspects of the duties of a teacher are most relevant in this case.

The Committee is not satisfied that the Member failed to comply with these components of his duties as a teacher. The Committee largely accepted the Member’s evidence that his strategies with the Child were directed at identifying for the Child his problematic behaviours, distracting him from outbursts, or responding to difficult behaviours. The Committee is not satisfied that the Member failed to inculcate by precept and example, as those terms are contemplated by the Education Act.

5) The Member did not commit 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)

The Committee does not find that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. As above, College Counsel relied on the same particulars as those in relation to psychological or emotional abuse in support of this allegation. For the reasons articulated in relation to psychological and emotional abuse, the majority of the factual allegations were not established. Those that remain – the showing of the video to the Child, the holding of the cup of water, and turning off the lights – do not amount to acts that members would regard as disgraceful, dishonourable or unprofessional. In particular, the Member’s relative inexperience as a teacher and placement in an environment where there was no immediate access to mentorship or the expertise of senior teachers, combined with the fact he was dealing with a child who presented with [XXX], compel the conclusion that the Member did not act disgracefully, dishonourably or unprofessionally. The Committee accepted the Member’s evidence that he was trying techniques to try to respond to the Child’s behaviour, even though they were sometimes misguided. Those attempts do not amount to professional misconduct.

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

The Committee does not find that the Member engaged in conduct unbecoming a member. As above, College Counsel relied on the same particulars as those in relation to psychological or emotional abuse in support of this allegation. For the reasons articulated in relation to psychological and emotional abuse, the majority of the factual allegations were not established. Those that remain – the showing of the video to the Child, the holding of the cup of water, and turning off the lights – do not amount to conduct unbecoming a member. As articulated above, those actions were the Member’s responses to the Child’s problematic behaviour and were not taunts, antagonisms, ridicule or otherwise malicious behaviour that would undermine the reputation of the teaching profession and thereby constitute conduct unbecoming a member.

DISPOSITION

For the reasons given and in accordance with its mandate in s. 30 of the Act, the Committee finds the Member not guilty of the allegations of professional misconduct as alleged in the Notice of Hearing.

Date: May 28, 2019

______________________________ Jean-Luc Bernard, OCT

Chair, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn.
2. 2The name of the Child’s mother has been anonymized throughout this decision in order to protect the Child’s identity.
3. 3In reply to the submission that Ms. Cleveland refused to testify despite having been summonsed by the College, Member’s Counsel submitted that her refusal to testify should cause the Committee to question the reliability of her hearsay evidence. Member’s Counsel submitted that the Committee should draw an adverse inference in this regard.
4. 4Other than subsection 1(5) of Ontario Regulation 437/97, which was withdrawn.
5. 5With the exception of subsection 1(5) of Ontario Regulation 437/97, which the College withdrew.
6. 6Exhibit J was never ultimately entered as a numbered exhibit during this hearing because neither party sought to enter it as an exhibit. It remains a lettered exhibit for identification, for the purposes of the record.
7. 7The College withdrew the allegation of failing to maintain the standards of the profession contrary to s. 1(5) of Ontario Regulation 437/97.
8. 8For greater clarity, in the video segment entered as Exhibit 7, the Member can be seen showing the Child another cellphone video of his behaviour. This cellphone video appears to be the Member’s recording of the Child’s behaviour, which can be seen within the larger cellphone video (Exhibit 7) that depicts the Member’s interactions with the Child during the incident in question.
9. 9College Counsel objected to the Member being able to address the topic of the sensitivity or recording ability of the cellphone in re-examination. The College’s position was that this topic was already addressed during the Member’s examination in chief and then during cross-examination, so it was not appropriate to raise again in re-examination. Member’s Counsel disagreed and submitted that this was a new topic that was raised during cross-examination for the first time, which entitled him to ask questions about it in re-examination. The Committee allowed Member’s Counsel to ask questions about this topic in re-examination. The Committee found that, when College Counsel asked the Member (during cross-examination) about the cellphone’s ability to pick up the Member’s voice whether he was in the kitchen or right next to the phone, he raised a new issue regarding the cellphone’s audio sensitivity which had not previously been address during the Member’s examination in chief. Because this new topic was raised, Member’s Counsel was entitled to re-examine the Member on this issue.
10. 10Enforcing limits was acknowledged as an appropriate step to take in response to the Child's behaviours in the Behaviour Crisis Management Plan (Exhibit 11).
11. 11As set out above, the College withdrew the allegation that the Member failed to maintain the standards of the profession contrary to s. 1(5) of Ontario Regulation 437/97.