DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bradley 2019 ONOCT 73

Date: 2019-08-13

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 Edward Bradley, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

TIMOTHY EDWARD BRADLEY (REGISTRATION #259944)

PANEL: Diane Ballantyne, OCT, Chair Rebecca Forte, OCT Marlène Marwah

HEARD: June 24, 2019

Ava Arbuck and Vincent DeMarco, for Ontario College of Teachers

Jerry Raso, for Timothy Edward Bradley

Renée Kopp, 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 “Panel”) on June 24, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated February 7, 2018 (Exhibit 1) was served on Timothy Edward Bradley (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 24, 2019.

The Member was in attendance for the hearing and had legal representation. The Panel 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 Edward Bradley is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) he committed 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

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

AGREED STATEMENT OF FACTS

College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Timothy Edward Bradley 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 respecting the Member.

2. At all material times, the Member was employed by the London District Catholic School Board (the “Board”) as a teacher at [XXX] School (the “School”) in London, Ontario.

3. At all material times, Person A was a female Teacher Candidate and the Member was assigned as the Associate Teacher to her practicum.

Monday, November 16, 2015

4. Person A began her first day of practicum on Monday, November 16, 2015.

5. The Member attended at a meeting room in the School to pick up Person A. The first words that Person A heard from the Member were “You’re Polish, I hate Polish people”. The Member then turned and walked away.

6. The Member had a student in his Grade [XXX] class introduce Person A to the class in Polish. The student was uncomfortable doing so, but ultimately mumbled an introduction. The Member did not offer a translation for the other students in the class who did not understand and did not provide Person A an opportunity to say a few words to the class.

7. The Member had a student in his last period Grade [XXX] class do an introduction in Polish as well. Again, the Member did not offer a translation for the other students in the class.

8. While students were completing group work in the Member’s Grade [XXX] class, the Member asked to feel Person A’s hand. Person A gave him her hand because she did not know what to do and the Member commented that her had [sic] was “not sweaty or cold, so you’re relaxed”.

Tuesday, November 17, 2015

9. The Member and Person A were alone in the English office and the Member asked to see Person A’s hand again. The Member took both of his hands and rubbed her hands, in an attempt to warm them up.

10. During the last period class, the Member taught a lesson and was walking back and forth past Person A’s desk and the projector. After the Member completed the lesson, the Member touched the back of Person A’s neck and commented, “you have a small neck”.

Wednesday, November 18, 2015

11. During a break, when the Member and Person A were along [sic] in the English office, the Member tried to explain a lesson plan to Person A. The Member mapped out teaching techniques and Person A did not fully understand what he was doing.

12. The Member stated to Person A, “How do you not understand? How do you say ‘understand’ in Polish?” Person A said the word “understand” in Polish, but told the Member that she could not write it down. The Member then attempted to write the word “understand” in Polish and said to Person A, “That is why you’re not that bright, Polish people are not that bright”. Person A felt that her intellectual ability was degraded.

13. During the same conversation, the Member asked Person A how to say “cow” in Polish. The Member then told Person A, “You’re like a cow that chews slowly, keep chewing”. Person A was insulted by this comment.

14. After the conversations about “understand” and “cow”, the Member asked to hold Person A’s hand and he intertwined his fingers with hers.

15. The Member and Person A were alone in the English office on the lunch break. Person A asked for feedback from the Member to which he responded that she needed to be more confident. The Member then asked Person A whether she was struggling with a personal matter such as whether she broke up with a boyfriend. Person A began to cry in response to the questioning. The Member then continued to prod and ask if she was lonely and felt insecure. Person A did not answer the Member.

Thursday, November 19, 2015

16. The Member and Person A were alone in the English office on the lunch break. The Member commented on her boots and handwriting. The Member then asked if he could call Person A by his wife’s name because he said that Person A overthinks things just like his wife. Person A responded no.

Friday, November 20, 2015

17. Person A and another teacher candidate got lost on their way back from lunch and were late when they entered the cafeteria for a Professional Development presentation. When they arrived, the Member told them that they were “losers” and that they had to sit with the Principal because they came back late from lunch.

18. During the Professional Development presentation, the Member took and scrolled through another teacher’s phone. When the teacher noticed, the Member blamed Person A. Person A felt embarrassed and awkward.

19. The Member sat beside Person A during the Professional Development presentation and asked her if she was okay. The Member then reached over and put his hand on top of her hands which were in her lap.

20. The Board had an independent investigation conducted with respect to the complaints made by Person A against the Member. Attached hereto and marked as Exhibit “B” is a copy of the investigation report and findings prepared by Jennifer L. Costin of Siskinds LLP and dated February 3, 2016.

Board Discipline

21. Person A filed a formal harassment complaint under the Respectful Workplace, Violence and Harassment Prevention Policy of the Board. Attached hereto and marked as Exhibit “C” is a copy of the completed Formal Complaint Form dated December 4, 2015 and a copy of a typed letter from Person A to the Senior Manager of Human Resources for the Board dated December 4, 2015.

22. The Board suspended the Member for five days without pay from April 4 to 8, 2016. The Board also prohibited the Member from involvement with any practicum students for the balance of his teaching career with the Board. The Member was also required to take a professional boundaries course. Attached hereto and marked as Exhibit “D” is a copy of the discipline letter dated March 30, 2016.

GUILTY PLEA

23. By this document,¹ the Member admits the truth of the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).

24. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5); 1(14); 1(15); 1(18); and 1(19).

25. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

26. In light of the Admitted Facts and circumstances and the plea of guilt, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on June 24, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 22 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).

Paragraphs 5-10, 12-19 and 24 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 5-10, 12-19 and 24 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14).

Paragraphs 5-10, 12-19 and 24 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 5-10, 12-19 and 24 of the Agreed Statement of Facts and Guilty Plea 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 5-10, 12-19 and 24 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3) presented to the Panel on June 24, 2019, the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Panel:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;

3. direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of the date of the Committee’s Order, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding sensitivity and boundaries with colleagues subject to the following conditions:

(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner which:

(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.

ADDITIONAL SUBMISSIONS ON THE TIMING OF THE SUSPENSION

During the hearing on June 24, 2019, the Panel received the parties’ Joint Submission on Penalty (Exhibit 3) and sought additional submissions with respect to the timing of the suspension. The Panel was concerned that the proposed penalty was too lenient because the suspension would have been served almost entirely during the summer, when the Member was not expected to teach. The Panel therefore sought additional submissions from the parties as to how the objectives of specific deterrence, general deterrence and the protection of the public interest would be served if the Member were ordered to serve his two-month suspension in July and August, when teachers do not normally teach. If the suspension portion of the penalty was intended to remove the Member from the teaching profession for two months, the Panel was concerned that it would not have the intended effect if the Member were able to serve his suspension during the summer. The parties were given an opportunity to address the Panel’s concerns and did so.

Additional Submissions of College Counsel

In response to the Panel’s concerns, College Counsel submitted that the jointly proposed penalty was appropriate for a number of reasons. First, College Counsel noted that suspensions are often served during the summer, including the two-month suspension that was ordered in Ontario College of Teachers v. Bergin, 2018 ONOCT 29 in June 2018, in similar circumstances.

College Counsel noted that a new College policy was recently established so that suspensions would be served during the school year. However, the parties’ agreement in this case was negotiated before that policy came into effect, although the agreement was signed afterwards.

Moreover, College Counsel submitted that the jointly proposed penalty was not too lenient compared to other similar cases. In Ontario College of Teachers v. Odjig, 2018 ONOCT 27, for instance, a member sexually harassed multiple colleagues and made inappropriate comments to several students, which was more serious than the Member’s misconduct. The penalty in that case included a three-month suspension. College Counsel submitted that these cases demonstrate that the jointly proposed penalty is within a range of acceptable outcomes.

Second, College Counsel submitted that the fact that a two-month suspension was ordered in this case would be made public, which would have a direct impact on the Member. The Member would have a permanent record of his suspension on his public register profile, the Panel’s decision would be publicly accessible, and a summary of the decision would appear in Professionally Speaking. Therefore, the public, the profession, and any future employers would be made aware that the Member received a two-month suspension as a result of his professional misconduct, regardless of when that suspension was, in fact, served.

Third, College Counsel submitted that the Member has been teaching without further incident for several years since the time of his misconduct. According to College Counsel, this should be considered a mitigating factor in this case.

Fourth, the College noted that, if the Member’s suspension were to begin at the start of the next academic year (instead of during the summer), this would be disruptive to his students.

Accordingly, College Counsel submitted that it would not bring the administration of justice into disrepute or be otherwise contrary to the public interest if the Panel were to accept the jointly proposed penalty. The College urged the Panel to accept the parties’ agreement.

Additional Submissions of Member’s Counsel

Member’s Counsel agreed with all of the College’s submissions. According to him, the Joint Submission on Penalty meets all of the penalty objectives, and the Panel ought to accept the parties’ agreement.

Member’s Counsel submitted that there were several mitigating factors in this case that the Panel ought to consider, including that: the Member is remorseful; he cooperated fully with the investigation in this matter; he admitted his misconduct freely; he willingly participated in a professional boundaries course to address his inappropriate behaviour; and, he has been teaching without incident for three and a half years following the incidents in this case.

Moreover, Member’s Counsel submitted that the Member’s school community is already well-aware of his professional misconduct, and that, even if he were to serve his suspension during the summer, this matter would still be publicly known. The Member’s Board already suspended him without pay for five days during the school year, so the Member would not be avoiding public scrutiny by serving his suspension during the summer.

Member’s Counsel further submitted that the parties negotiated this agreement in good faith, that the jointly proposed penalty was in the public interest, and that the timing of the hearing was based on available dates provided by the College. There was no attempt to schedule the hearing such that the Member would avoid serving his suspension during the school year. The timing was coincidental.

ADDITIONAL SUBMISSIONS ON THE TIMING AND FORM OF THE REPRIMAND

During the course of its deliberations, the Panel sought additional written submissions from the parties regarding the timing and form of the reprimand. The Panel sent a letter to the parties on July 4, 2019, seeking submissions with respect to (a) the timing of the administration of the reprimand; (b) the form of delivery of the reprimand (i.e. in person or in writing); and (c) whether the parties are agreed on the timing and form of the reprimand. These additional submissions were sought because the parties’ Joint Submission on Penalty provided that the Member would receive his reprimand “immediately following the hearing”. Since the Panel had reserved its decision with respect to penalty on June 24, 2019, the originally proposed timing of the reprimand was no longer possible.

Additional Submissions of College Counsel

College Counsel responded to the Panel’s request on July 5, 2019, and submitted that the reprimand ought to be delivered in writing on the date of the Panel’s order. According to College Counsel, this would allow the reprimand to be received together with the Panel’s Decision, Reasons for Decision and Order, which would be most impactful in the circumstances.

If the Panel considered an oral reprimand to be more appropriate, College Counsel submitted that the Member should appear before the Committee on a date to be arranged by the Member, within 90 days of the date of the Panel’s order. This would afford the Member sufficient time to make travel arrangements to attend to receive an oral reprimand.

College Counsel further submitted that the parties were agreed on the timing and form of the reprimand and that they were jointly proposing the above submissions.

Additional Submissions of Member’s Counsel

Member’s Counsel responded to the Panel’s request on July 5, 2019 and adopted in whole the submissions of College Counsel.

In addition, Member’s Counsel made the following two submissions. First, a written reprimand would be most appropriate, given that the Member attended his hearing from out of town on June 24, 2019 and expected to receive a reprimand immediately following the hearing. Second, Member’s Counsel requested that the Panel’s decision be rendered as soon as possible given the uncertainty in this matter.

PENALTY DECISION

In a decision rendered on August 13, 2019, the Panel rejected the Joint Submission on Penalty presented by the parties and made the following order with respect to penalty.

1. The Member is directed to appear before the Committee within 90 days of the date of the Decision, Reasons for Decision and Order, on a date to be arranged by the Member, to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on September 3, 2019, and the fact of the suspension is to be recorded on the Register;

3. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of the date of the Panel’s Order, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding sensitivity and boundaries with colleagues subject to the following conditions:

(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner which:

(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.

REASONS FOR PENALTY DECISION

After carefully considering the evidence before it, the parties’ submissions, and their additional submissions with respect to the timing of the suspension and the form and timing of the reprimand, the Panel rejected the parties’ Joint Submission on Penalty. The Panel will first set out the legal test for rejecting a joint submission, and it will then explain why it believes that it is reasonable to reject the parties’ joint submission in the particular circumstances of this case.

The Panel reiterates that it was not concerned by the two-month duration of the proposed suspension. The primary concern in this case was the timing of the suspension. The Panel believes that it would bring the administration of the discipline process into disrepute if the Member were permitted to serve his suspension during the summer, when teachers traditionally do not teach.

The public interest test

The Supreme Court of Canada in R. v. Anthony-Cook, [2016] 2 SCR 204, 2016 SCC 43, has determined that the test for rejecting a joint submission is the public interest test. That is, a trial judge or discipline panel should not depart from a Joint Submission on Penalty unless the proposed penalty would bring the administration of the discipline process into disrepute or would otherwise be contrary to the public interest. This is an undeniably high threshold to meet.

The Supreme Court of Canada emphasized that a joint submission should not be rejected lightly:

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down (Anthony-Cook at para. 34).

Similarly, adjudicators should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts” (Anthony-Cook at para. 33, citing R. v. B.O.2, 2010 NLCA 19 at para. 56).

The Panel has not rejected the Joint Submission on Penalty lightly, and it believes that the legal test has been met in this case for the following reasons.

Application of the public interest test

The Panel believes that accepting the Joint Submission on Penalty in this case would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest, for two main reasons: (1) accepting the joint submission would cause the public to lose confidence in the College’s disciplinary process; and (2) the penalty objectives of specific deterrence, general deterrence, rehabilitation, and protection of the public interest would not be sufficiently met if the Member were allowed to serve his suspension during the summer.

First, the Panel believes that allowing the Member to serve his two-month suspension during the summer, when teachers traditionally do not teach, would cause the public to lose confidence in the College’s ability to effectively regulate the teaching profession. In this case, the Panel was not fully provided with the circumstances leading to the joint submission and, in particular, any benefits obtained by the College or concessions made by the Member so as to explain why it would be appropriate for the suspension to be served during the summer, when most teachers are not working.

The Panel notes that the Supreme Court of Canada in R. v. Anthony-Cook made the following comments with regard to what information should be provided to a court, or in this case, a Discipline Panel in the case of a contentious joint submission:

53Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.

The Panel acknowledges that the Member gave up his right to a full hearing in exchange for entering a guilty plea. The Panel understands that joint submissions are commonplace and vitally important to the discipline process. The Panel recognizes that maximizing the certainty of the outcome for the parties and particularly for the Member is crucial. The Panel also recognizes that a guilty plea is an expression of remorse on the part of the Member. However, joint submissions are not sacrosanct where the public interest test is met and in those circumstances panels may depart from them and that is the situation in this case with respect to the timing of the suspension. The Panel was not provided with sufficient information about any flaws in the College’s case that led to it jointly proposing a suspension that would take place during the summer.

Second, the Panel does not believe that the penalty objectives of specific deterrence, general deterrence, rehabilitation and protection of the public interest would be adequately met if the Member were allowed to serve his two-month suspension during the summer.

The Panel does not believe that the proposed penalty would have a sufficient impact as a specific deterrent because the Member is not actually being removed from the classroom if his suspension is “served” during the summer. Because the hearing took place during the last week of the school year, if the Panel were to accept the parties’ jointly proposed penalty, the Member would effectively only be “serving” a suspension of less than one week. The Panel believes that the Member’s misconduct was serious enough to warrant a two-month served suspension. Accepting the proposed penalty is therefore not in the public interest.

The Panel heard the parties’ submissions in this regard but it does not believe that the proposed penalty would in fact serve as a sufficient general deterrent to other members of the profession. If the suspension were allowed to be served during the summer, without a fulsome explanation as to why that was appropriate in this particular case, including the benefits obtained by the College, other members of the profession might think that there are minimal consequences for engaging in serious professional misconduct.

The Panel does not believe that the proposed penalty would satisfy the need for rehabilitation or remediation in this case. A suspension provides members with the opportunity to reflect on the behaviour that led to the suspension. The summer months in the teaching profession are usually used as a break from work. The Panel is not satisfied that the type of sober reflection that would occur when a member is suspended during the school year would occur when a member is suspended during the summer months, while they are on break and not likely thinking about the consequences of their behaviour to the same extent. While the Panel recognizes that the coursework ordered in this case will serve a rehabilitative function, given the serious nature of the Member’s misconduct, the Panel finds that the coursework alone is insufficient in meeting the objective of rehabilitation. The Member must meaningfully reflect on his professional misconduct, which the Panel does not believe can be best achieved during the summer.

In addition, the Panel does not believe that the public interest would be adequately served or protected if the Member were allowed to serve his suspension during the summer. In the Panel’s opinion, despite the fact that it will be on the Member’s record, serving a suspension during the summer is essentially symbolic. The Panel disagrees with the parties’ submission that, since the Member already served a five-day suspension imposed by his employer during the school year, it would now be appropriate for him to serve his two-month suspension primarily during the summer months because his school community was already aware of his misconduct. In the Panel’s view, the employment consequences that the Member faced are separate from the disciplinary consequences that he is now facing before the College, which regulates the teaching profession in the public interest. The Member agreed, and the Panel accepts, that a two-month suspension was an appropriately long penalty. However, that penalty is significantly undermined if the Member is allowed to serve it during the summer months. Members should be suspended from their active teaching duties if a suspension is to be meaningful. The Panel believes that the public would lose confidence in the College’s ability to regulate the profession if it allowed its members to serve suspensions during a period when teachers do not typically teach.

Moreover, allowing the Member to serve his suspension during the summer is not a sufficient consequence for the Member, given the facts in this case. The Member was an Associate Teacher who was responsible for guiding Person A (a Teacher Candidate) through the beginning stages of her career. He was in a position of power, as Associate Teachers write a report at the end of a Teacher Candidate’s placement, which can impact the Teacher Candidate’s future employment opportunities.

The Panel is of the view that reasonable and informed persons, aware of all the relevant circumstances, would believe that the proper functioning of the justice system had broken down if serious professional misconduct warranting a negotiated two-month suspension from teaching was, in reality, only served as a three or four day suspension from teaching (with the remainder served during the summer). The relevant circumstances in this case include the objectives of sanction, the public’s confidence in the College’s discipline process, and the message that would be sent to Person A, the recipient of the Member’s unwanted attention. The Panel does not believe that the public or, in particular, the young woman who endured both inappropriate sexual advances and offensive ethnic slurs, would view a summer suspension as a sufficient consequence for these actions. No employee should be expected to endure such actions from a colleague where a clear power imbalance exists. Employees who report such egregious behaviour should feel assured that consequences are clear and impactful. A summer suspension is not an impactful suspension, it would bring the administration of the discipline process into disrepute and it is not in the public interest.

Accordingly, the Panel believes that the public interest test for rejecting a joint submission has been met in this case. The Panel has therefore ordered that the Member’s two-month suspension will be served beginning on September 3, 2019.

Reprimand

The Panel finds that the Member’s pattern of insensitive, demeaning and unprofessional behaviour towards Person A warrants a reprimand by his peers. The Member made a number of inappropriate comments about Person A’s cultural background, he embarrassed her in front of students, and he repeatedly made inappropriate contact with Person A, which the Board found to be both harassing and sexual in nature (see Exhibit 2 at Tab B). It is unacceptable for members of the profession to make unwanted advances or physical contact with their colleagues. Members of the teaching profession are expected to serve as positive role models, and to create collaborative, safe and supportive learning communities. By treating a Teacher Candidate with such blatant disrespect, the Member fell short of meeting these expectations. In his role as an Associate Teacher, the Member was supposed to act as a mentor to Person A, but he instead took advantage of this power imbalance by harassing her and repeatedly engaging in unwelcomed behaviour. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

With respect to the parties’ additional joint submission regarding the timing and the form of the reprimand, while the Panel recognizes the Member’s preference to receive his reprimand in writing, the Panel finds that it is more appropriate for the reprimand to be delivered in person at the College. The Panel notes that the parties jointly submitted that it would be acceptable to deliver the reprimand in writing or in person within 90 days of the date of the Panel’s order.

The Panel finds that it would be most impactful for the Member to receive his reprimand in person. By delivering its reprimand in person, the Committee will be able to convey directly to the Member its serious concerns with his behaviour in this case. Delivering a reprimand in person in a formal setting also allows the Committee to deliver its message to the Member in a tone that is appropriate in the circumstances. The Member’s professional misconduct in this case was serious and the penalty needs to reflect that fact.

Two-month suspension

Given the repeated nature and the severity of the Member’s conduct, the Committee finds that a two-month suspension is reasonable and appropriate. The misconduct described in the cases presented by College Counsel (Bergin and Odjig) is of a similar underlying nature and confirms that a two-month suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

As set out above, the Committee believes that the penalty objectives of specific deterrence, general deterrence, rehabilitation, and the protection of the public interest will only be adequately met if the suspension begins to run during the school year, on September 3, 2019.

Coursework

The Committee finds that the course of instruction regarding sensitivity and boundaries with colleagues will assist in the rehabilitation of the Member. The Member demonstrated a concerning lack of professional judgment in his various inappropriate interactions with Person A. His unprofessional conduct must be corrected. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with colleagues. The Committee is encouraged that the Member’s rude and demeaning conduct has not been repeated in the years since the incidents that gave rise to this hearing.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: August 13, 2019

______________________________

Diane Ballantyne, OCT

Chair, Discipline Panel

______________________________

Rebecca Forte, OCT

Member, Discipline Panel

______________________________

Marlène Marwah

Member, Discipline Panel

Footnotes

1. 1For the purposes of paragraphs 23 and 25, this “document” refers to the Agreed Statement of Facts and Guilty Plea.