DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v DeBernardi 2019 ONOCT 07
Date: 2019-02-19
DECISION, REASONS FOR DECISION AND ORDER
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Timothy Peter DeBernardi, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
TIMOTHY PETER DEBERNARDI (REGISTRATION # 466841)
PANEL: Diane Ballantyne, OCT, Chair Marlène Marwah Tom Potter
HEARD: February 19, 2019
Christine Wadsworth of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
Jerry Raso of Ontario English Catholic Teachers' Association, for Timothy Peter DeBernardi
Julie Maciura of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 19, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated January 12, 2018 (Exhibit 1) was served on Timothy Peter DeBernardi (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for February 19, 2019.
The Member was not in attendance for the hearing but had legal representation who was present at the hearing. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Timothy Peter DeBernardi is guilty of professional misconduct as defined in the Act in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) 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).
STATEMENT OF UNCONTESTED FACTS
College Counsel presented the Committee with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Timothy Peter DeBernardi is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Niagara Catholic District School Board as a teacher at [XXX] School (the “School”) in [XXX], Ontario.
In the academic year 2005-2006, the Student was a female student at the School, in the Member’s Grade [XXX] class.
During the 2005-2006 academic year, the Member:
a. engaged in an inappropriate personal relationship with the Student;
b. paid excessive attention to the Student;
c. befriended the Student’s family;
d. gave the Student his [XXX] as a gift.
- After the Student graduated from the School and moved on to secondary school, the Member continued to engage in an inappropriate personal relationship with the Student, which included:
a. inviting the Student to attend a sleepover at the Member’s [XXX] property;
b. paying excessive attention to the Student during [XXX] activities;
c. sitting under a blanket with the Student during [XXX] activities;
d. putting his arm around the Student during [XXX] activities;
e. touching and/or playing with the Student’s hair during [XXX] activities;
f. engaging in personal interactions with the Student, including electronic communications, without the knowledge and/or permission of the Student’s parents;
g. giving the Student gifts;
h. spending time alone with the Student.
The Member and the Student developed a romantic and/or sexual relationship and are now [XXX].
On September 27, 2002, the Ontario College of Teachers approved a professional advisory on professional misconduct related to sexual abuse and sexual misconduct. Attached hereto and marked as Exhibit “B” is a copy of the College advisory.
The College engaged Dr. Mary Louise Arnold to review the matter. As set out in Dr. Arnold’s report, she concluded:
a. The Member’s relationship with the Student “was far outside the boundaries of acceptable teacher-student relationships, and it therefore constitutes a serious breach of ethical and professional standards”;
b. There are aspects of the Member’s relationship with the Student “that are in keeping with widely recognized characteristics of grooming behaviour”;
c. The sustained personal attention the Member paid to the Student while she was in his Grade [XXX] class and in her Grade [XXX] year was extreme; and
d. Much of the attention the Member paid to the Student was “openly affectionate, often with romantic innuendo or overtones to it” and there were “sexual undercurrents to their relationship”.
- Attached hereto as Exhibit “C” is a copy of Dr. Arnold’s expert report, dated December 11, 2018.
PLEA OF NO CONTEST
By this document,1 the Member agrees that the Discipline Committee can accept as correct the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7) (pre – May 2008 amendments to the Act), 1(7.2), 1(7.3), 1(15), 1(18), and 1(19).
By this document the Member states that:
a. he understands fully the nature of the allegations against him;
b. he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
c. he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
d. he understands that the Discipline Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
e. he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
f. he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;
g. he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal, or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member jointly submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Committee rendered an oral decision on February 19, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(18), and 1(19).
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 9 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(18), and 1(19).
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest, and the exhibits thereto, demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). In particular, the expert report of Dr. Mary Louise Arnold establishes that this allegation has been proven.
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest, and the exhibits thereto, demonstrate that the Member abused the Student physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7). The Member engaged in an inappropriate personal relationship with the Student, including behaviour that was openly affectionate and contact of a romantic and sexual nature. The Committee, informed by the report of Dr. Arnold about the dimensions of grooming behaviour, finds that the Member’s conduct constitutes grooming behaviour. In particular, the nature of the conduct, its frequency and the context where it occurred – outside of the school in a [XXX] and at the Member’s [XXX] – establishes that the Member’s actions were intended to groom the Student for a future sexual relationship. The Committee concludes that this behaviour amounts to psychological, emotional and sexual abuse.
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused the Student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused the Student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3).
Parenthetically, the Committee notes that College Counsel submitted that the Member’s misconduct occurred both while the previous version of s. 1(7) of Ontario Regulation 437/97 was in force, as well as after the new version came into force in 2008. The old provision grouped the forms of abuse together into one misconduct provision, whereas the new provision delineates various forms of abuse separately in subsections 1(7), 1(7.2) and 1(7.3). The Committee finds that the Member’s conduct meets the definition of the offence(s) on both versions of the Regulation.
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990 chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under the Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 2-9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar.
PENALTY DECISION
In an oral decision rendered on February 19, 2019, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Member’s misconduct included the sexual abuse of a student, but it did not involve an act listed at subsection 30.2(2) of the Act. In accordance with subsection 30.2(1) of the Act, the Committee must (at a minimum) make an order: requiring that the Member be reprimanded by the Committee; and directing the Registrar to suspend his Certificate of Qualification and Registration. Given the circumstances of this case and the agreement between the parties, the Committee finds that revocation is a more appropriate penalty than a suspension. The Committee has the discretion to make this order pursuant to subsection 30.2(3) and 30(4) of the Act.
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Kemp, 2017 ONOCT 68, and Ontario College of Teachers v. Chiandussi, 2018 ONOCT 48.
The Committee finds that the Member’s conduct warrants a reprimand by his peers. It is intolerable for members of the profession to engage in inappropriate personal relationships with students, grooming them for future sexual relationships. The Member’s behaviour undermined the reputation of the teaching profession, and has seriously broken the trust that parents, students and the public place in teachers. The Committee must denounce this inexcusable conduct in the strongest terms. In addition to serving as a specific deterrent to the Member regarding this type of intolerable conduct, recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that revocation is the appropriate penalty given the circumstances of the Member’s case. The Member engaged in grooming the Student while she was a vulnerable student and ultimately engaged in a romantic and/or sexual relationship with her and [XXX] her. In so doing, the Member abused the authority and trust vested in him in his role as a teacher, without regard for the agency and vulnerability of the Student. The Member’s conduct was unacceptable and in conflict with the duty of a teacher to protect students. Revocation in this case will convey to other members of the profession that they cannot abuse the trust placed in them as educators and they must respect professional boundaries. It will provide the public with confidence in the discipline process and make clear that the Committee takes misconduct of this nature extremely seriously.
As a result of his unacceptable conduct, the Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario. Revocation, in this case, is proportionate to the Member’s misconduct.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: February 19, 2019
______________________________
Diane Ballantyne, OCT Chair, Discipline Panel
______________________________
Marlène Marwah Member, Discipline Panel
______________________________
Tom Potter Member, Discipline Panel