DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Suzuki 2019 ONOCT 75

Date: 2019-07-30

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

Moses Michael Vanker Ashraf Mori Suzuki, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MOSES MICHAEL VANKER ASHRAF MORI SUZUKI (REGISTRATION #619299)

PANEL: Nicola Powadiuk, OCT, Chair Godwin Ifedi Stéphane Vallée, OCT

HEARD: June 20, 2019

Ava Arbuck and Steven Chadwick of McCarthy Tétrault LLP, for Ontario College of Teachers

No one appearing for Moses Michael Vanker Ashraf Mori Suzuki

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 June 20, 2019, at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated February 7, 2018 was served on Moses Michael Vanker Ashraf Mori Suzuki (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 20, 2019.

The Member did not attend the hearing and he did not have legal representation.

SERVICE

Counsel for the College submitted an Affidavit of Steven Chadwick (Exhibit 3), sworn on June 18, 2019, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought by the College. In this affidavit, Mr. Chadwick, a lawyer with McCarthy Tétrault LLP, outlines College Counsel’s multiple attempted communications with the Member and provides proof of service of all required documents.

On February 16, 2018, College Counsel attempted to serve a copy of the Notice of Hearing and disclosure brief on the Member’s last known address with the College. However, according to the process server, the current resident of that address was not the Member. The process server learned that the Member moved from that address in the summer of 2017. On January 30, 2019, College Counsel attempted to serve the Member with Notice of Hearing via regular mail at the Member’s last known address. The letter was returned, unopened, with the Member’s name and address crossed out and the word “moved” written across it.

On May 22, 2019, College Counsel wrote a letter to the Member advising him of his hearing date, and asked him to advise if that date was not agreeable. The letter included information regarding the College’s process, potential penalty and costs, and it requested that the Member advise whether he intends to participate in his hearing. This letter and the attached documents were sent to the Member via email (at his last know email address) and via regular mail to the Member’s last known address. The email was successfully delivered to the Member’s email address. The Member did not respond to any of College Counsel’s numerous attempts to communicate with him.

Based on this affidavit, Rule 2.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), and By-Law 9.09(c), the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought by the College. The Committee therefore heard this matter in the absence of the Member.

MOTION TO EXTEND TIME FOR SERVICE AND TO CALL WITNESS TETSIMONY VIA VIDEOCONFERENCE

At the outset of the hearing, College Counsel brought two motions:

(1) A motion requesting permission to extend the time for service set out in Rule 5.01(2) of the Rules; and

(2) A motion requesting permission to examine the College’s witnesses via videoconference.

In support of the motions brought by the College, College Counsel presented the Committee with the Affidavit of Steven Chadwick (Exhibit 4), sworn on June 19, 2019, the Factum of the Moving Party, and the Brief of Authorities – Motion. As the Member chose not to participate in his hearing, the College’s motions were unopposed.

Extending Time for Service

College Counsel’s Submissions

College Counsel sought an order from the Committee to extend the time for service set out in Rule 5.01(2) of the Rules. Rule 5.01(2) states that “the person bringing the motion shall deliver the Notice of Motion and motion materials by the Tuesday that is at least 10 days before the date specified for the hearing of the motion.” College Counsel submitted that their motion materials ought to have been served on the Member by June 11, 2019 to comply with the 10-day timeline specified in Rule 5.01(2). However, the College’s Notice of Motion was served on the Member one day late, on June 12, 2019 (Exhibit 3). Due to the late service of the Notice of Motion, College Counsel sought an order from the Committee to extend the time for service, pursuant to its authority in Rule 1.04(3) of the Rules.

Despite serving the Notice of Motion one day late, College Counsel submitted that the Member had notice of the College’s motion prior to June 12, 2019. On June 7, 2019, an email was sent to the Member advising him of the College’s intention to bring a motion asking the Committee to permit the College’s witness to testify via videoconference (Exhibit 3). The College’s position was that the Member had received the email on June 7, 2019 and therefore had sufficient time to respond to the College’s motion. According to College Counsel, the Member would therefore not be prejudiced by the College’s request to extend the time for service for their motion to permit witnesses to testify via videoconference.

College Counsel submitted further that the Rule 1.02(1) states that the Rules shall be construed liberally, therefore supporting the College’s request to extend the time for service in Rule 5.01(2) of the Rules.

Decision

The Committee accepted the College’s motion to extend time for service.

Reasons for Decision

According to Rule 1.04(3) of the Rules, the Committee has the authority to extend or abridge the timeline for service set out in Rule 5.01(2). The Committee accepts College Counsel’s submission, and finds that the Member is not prejudiced by granting the College’s motion to extend the time for service. The Committee finds that the Member had sufficient time to respond to the College’s motion regarding witness testimony via videoconference. On June 7, 2019 the Member was made aware of the College’s intention to bring this motion on the date of the hearing. The Member was subsequently served the Notice of Motion on June 12, 2019.

The Committee also accepts College Counsel’s submission that, as per Rule 1.02(1), the Rules shall be “liberally construed to secure the determination of all proceedings in a manner that is just and, where justice for the member would not be compromised, expeditious and protects the interest of witnesses.” The Committee finds that by hearing the College’s motion regarding witness testimony via videoconference, despite the non-compliance with the timeline in Rule 5.01(2) of the Rules, a fair and expeditious hearing can proceed. The Committee notes that compliance with the Rules is important. However, in the circumstances of this case, compliance with the timeline in Rule 5.01(2) was outweighed by the need to ensure that procedural issues relating to the hearing could be determined in order to achieve a fair and expeditious hearing on the merits.

Witness Testimony via Videoconference

College Counsel’s Submissions

College Counsel requested that the Committee make an order permitting the College’s witnesses to testify via videoconference pursuant to the Committee’s authority to hold an electronic hearing in Rule 8.01 of the Rules. College Counsel submitted that they intended to call five witnesses, all of whom are from either Manitoba or Nunavut. The witnesses each have relevant evidence relating to allegations against the Member. According to College Counsel, each witness was only expected to give evidence for approximately 15-30 minutes.

College Counsel stated that the witnesses were willing to participate in the hearing but, participation via videoconference is strongly preferred over in-person attendance. The reasons are:

(1) the witnesses’ remote geographical locations make travel to Toronto difficult due to the nature of the arrangements required, and the travel time and distances involved;

(2) the costs associated with bringing the witnesses to Toronto would be disproportionate to the time that is anticipated these witnesses would be testifying;

(3) one of the witnesses will need to remain in Manitoba for a previously scheduled medical appointment on the day of the hearing of this matter; and

(4) one of the witnesses is chaperoning students on a graduation trip outside of Winnipeg, Manitoba, on the day of the hearing of this matter.

College Counsel submitted that the witnesses would be testifying via videoconference in private locations. Further, College Counsel had made arrangements for sealed envelopes to be sent to the witnesses to be opened in the presence of the Committee.

Decision

The Committee accepted the College’s motion and permitted the College’s witnesses’ to testify via videoconference.

Reasons for Decision

The Committee finds that permitting the witnesses to testify via videoconference will promote a fair and expeditious hearing. The Committee has the discretion under Rule 8.01 of the Rules to order that some or all of a hearing be held electronically, unless it is satisfied that holding an electronic rather than an oral hearing is likely to cause a party significant prejudice. The Committee weighed the interests of the parties and the public and finds that there is no evidence of significant prejudice to the Member by allowing the College’s witnesses to testify via videoconference. The Committee finds that the Member was provided with adequate notice of the College’s motion to allow witnesses to testify via videoconference. The Member chose not to respond to the College’s motion or to participate in this hearing.

The Committee also considered the witnesses’ preferences to testify via videoconference (as articulated in Exhibit 4), including: that the witnesses live in remote geographical locations making travelling to Toronto difficult; that the costs associated with bringing these witnesses to Toronto would be disproportionate to the time that College Counsel anticipates they would be testifying; and, that at least two witnesses would not be able to testify if the witnesses were required to testify in person. The Committee recognizes that these are factors that can be considered by panels when determining videoconferencing request, and finds that permitting the witnesses to testify via videoconference will promote the fair and expeditious hearing of this matter.

OVERVIEW

During the 2013-2014 academic year, the Member is alleged to have made offensive, obscene and/or demeaning comments to a Grade [XXX] female student (“Student 1”) and her mother (“Student 1’s Mother”). During the same academic year, the Member is alleged to have permitted student(s) to spend time at his home late at night and consume alcohol. In March 2017, the Member is alleged to have posted a picture on Facebook that suggested a former girlfriend was associated with a well-known terrorist group.

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, on June 20, 2019, the Committee found that the Member engaged in professional misconduct for having breached subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Member was not found to have breached subsection 1(14) of Ontario Regulation 437/97.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Moses Michael Vanker Ashraf Mori Suzuki 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

(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. Moses Michael Vanker Ashraf Mori Suzuki is a member of the Ontario College of Teachers.

2. During the 2013-2014 school year, the Member was employed by the [XXX] as a Grade [XXX] teacher at the [XXX] School (the “Manitoba School”) in [XXX], Manitoba.

3. On or about February 25, 2014, the Member made obscene, offensive and/or demeaning comments via Facebook to Student 1, a Grade [XXX] female student.

4. On or about April 24 and 25, 2014, the Member made obscene, offensive and/or demeaning comments via Facebook to Student 1’s parent, including about Student 1.

5. On or about May 17 and/or 18, 2014, the Member invited and/or permitted a student and/or students to spend time in his home late at night.

6. On or about May 17 and/or 18, 2014, the Member permitted a student and/or students to consume alcohol at his home.

7. In March 2017, while employed as a Grade [XXX] teacher at the [XXX] School (“the Nunavut School”) in [XXX], Nunavut, the Member posted a picture on Facebook which suggested that a former girlfriend was associated with terrorists and/or a killing.

THE MEMBER’S PLEA

As the Member was not present, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

THE EVIDENCE

The College presented oral and documentary evidence in order to prove the allegations set out in the Notice of Hearing. 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 College’s evidence.

Oral Evidence

The College called five witnesses: (1) Student 1; (2) Student 1’s Mother; (3) Roy Miles (“Mr. Miles”); (4) Rylee Gilbert (“Mr. Gilbert”); and, (5) Doris Bruce (“Ms. Bruce”).

For reasons that will be set out in greater detail below, the Committee found that the five witnesses’ evidence was reliable, credible and consistent with respect to all material facts.

As the Member chose not to participate in the hearing, the College’s evidence was uncontradicted and no evidence was presented in the Member’s defence.

Student 1’s Testimony (via videoconference, Manitoba)

At the time of the hearing, Student 1 was [XXX] years old and living in [XXX], Manitoba with her parents. At the time of the events in question, she was approximately [XXX] or [XXX] years old and a Grade [XXX] student at the Manitoba School. Student 1 knew the Member because he was a Grade [XXX] teacher at the Manitoba School when she was in Grade [XXX]. Student 1 met the Member during her time in the [XXX]“ program, where the Member was in charge. Student 1 explained that the [XXX] program took place in the Manitoba School’s gym where students would come and take part in various sporting activities. At the time of the events in question Student 1 attended the [XXX] program a few times a week.

Student 1 testified in detail about the incidents that occurred in the 2013-2014 academic year. She explained that the Member permitted students to spend time in his home late at night and consume alcohol, and that the Member made offensive, obscene and/or demeaning comments to her via Facebook. Student 1 also gave evidence about the impact these incidents had on her.

Student 1’s Mother’s Testimony (via videoconference, Manitoba)

Student 1’s Mother has three children and resides in [XXX], Manitoba. Student 1’s Mother testified about two incidents: the offensive comments the Member made to her daughter, Student 1, via Facebook; and, the offensive comments the Member made to her, via Facebook. Student 1’s Mother also testified about how she felt reading the Facebook messages, as well as the impact the Member’s messages had on Student 1.

Mr. Miles’ Testimony (via videoconference, Manitoba)

Mr. Miles lives in [XXX], Manitoba and works as an educational director at the Manitoba School. He has held this position since 2010. Mr. Miles explained his duties and responsibilities as the educational director of the Manitoba School, including: hiring teachers, looking after teachers and staff, and making sure things run smoothly at the Manitoba School. Mr. Miles met the Member for the first time when he (along with the principal and the school board) hired the Member to work at the Manitoba School.

Mr. Miles testified about how he learned of the incidents during the 2013-2014 academic year, including the Facebook messages between the Member and Student 1, the Facebook messages between the Member and Student 1’s Mother, and the Member permitting students to spend time in his home late at night and consume alcohol.

Mr. Miles also testified about how the Manitoba School chose not to renew the Member’s employment contract following the 2013-2014 academic year (Exhibit 7). According to Mr. Miles, the fact that the Member permitted students to be in his home late at night and permitted them to consume alcohol played a role in the principal’s decision not to renew the Member’s employment contract.

Further, Mr. Miles testified about the [XXX] letter to the Member. The letter stated the [XXX] was aware that the Member permitted students to drink in his home, and advised him that he was relieved of his duties as [XXX] (Exhibit 8).

Mr. Gilbert’s Testimony (via videoconference, Manitoba)

Mr. Gilbert lives in Manitoba with his wife and is currently a principal at a school whose classes range from Nursery to Grade 8. Mr. Gilbert has been in his role as principal for two years. From September 2013 to early January 2014, Mr. Gilbert taught Grade [XXX] at the Manitoba School. We was a new teacher at the Manitoba School in 2013 and a recent graduate from a master’s program. In or around the middle of January 2014, Mr. Gilbert was promoted to vice-principal at the Manitoba School. Mr. Gilbert knew the Member because he lived next door to him in the “teachers’ unit” (a group of residence where the teachers of the Manitoba School resided). Mr. Gilbert and his wife lived in unit four and the Member lived in unit three.

Mr. Gilbert testified about witnessing the night that the Member permitted students to spend time in his home late at night. He testified about drafting an incident report pertaining to what he witnessed during this incident (Exhibit 10), as well as conducting two student interviews regarding this incident (Exhibits 11 and 12).

Mr. Gilbert further testified that the incident in the Member’s home resulted in a [XXX], which terminated the Member’s role as a [XXX] (Exhibit 8). According to Mr. Gilbert, the expectation was that the Member was to leave the community in [XXX].

Ms. Bruce’s Testimony (via videoconference, Nunavut)

Ms. Bruce lives in [XXX], Nunavut, a small community of 900 people. According to Ms. Bruce, the community has [XXX], the Nunavut School, which ranges from Kindergarten to Grade 12. Ms. Bruce is the Fine Arts Officer and has been elected by the community to also act as a District Education Authority member. As a District Education Authority member, Ms. Bruce is part of the Nunavut School’s school board, and assists with the Nunavut School’s hiring, finances and general operations. Ms. Bruce has held the position of District Education Authority member for one year.

Ms. Bruce testified that she knew the Member because he was her son’s Grade [XXX] teacher in the 2016-2017 academic year, and because the Member was her [XXX] A’s boyfriend. Ms. Bruce testified in detail about the incident that took place in March 2017. Specifically, she testified that the Member posted a disturbing photo on the community’s Facebook page (Exhibit 13). According to Ms. Bruce, the original photo was of James Foley (an American journalist) being beheaded by an ISIS militant. However, the Member had photo-shopped his face over James Foley’s and photo-shopped his then ex-girlfriend, A (Ms. Bruce’s [XXX]), beside the ISIS militant. Ms. Bruce explained how posting this photo negatively affected the community of [XXX], and that many parents refused to send their kids to the Nunavut School because they were scared of the Member.

Documentary Evidence

In addition to the oral evidence presented by the College, and the documentary evidence admitted through the live witnesses, the Committee also admitted the following documents into evidence, on the request of College Counsel:

• the Registered Member Information of Moses Michael Vanker Ashraf Mori Suzuki (Exhibit 2);

• the Registered Member Information of Rylee Robert Gilbert (Exhibit 9);

• the Affidavit of William Cooper, sworn June 14, 2019 (Exhibit 14); and

• the Affidavit of Jane George, sworn June 16, 2019 (Exhibit 15).

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the evidence presented to the Committee proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Committee should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing. With respect to the allegation that the Member breached subsection 1(5) of Ontario Regulation 437/97, College Counsel submitted that it was not necessary to present expert evidence to prove that the Member failed to maintain the standards of the profession because it is self-evidently a breach of professional standards for a member to verbally, and psychologically or emotionally abuse a student by directing obscene, offensive and demeaning comments to them.

College Counsel reviewed the relevant evidence with the Committee and submitted that evidence was uncontradicted and reliable, and that the five College witnesses were credible. College Counsel submitted that the evidence demonstrated a pattern of completely inappropriate behaviour, and a profound lack of professional judgment. According to College Counsel, the overwhelming evidence proves each of the allegations set out in the Notice of Hearing.

With respect to subsection 1(14) of Ontario Regulation 437/97, College Counsel submitted that if the Committee were to find that the Member breached subsection 1(5), it should not also find that there was a breach of subsection 1(14) because that would be duplicative. College Counsel submitted that the alleged breach of subsection 1(14) of Ontario Regulation 437/97 relates to section 32 of the College’s bylaws, in particular, which sets out the standards of the profession. According to College Counsel, because subsection 1(5) and 1(14) of Ontario Regulation 437/97 both relate to a breach of the standards of the profession a finding should only be made in relation to one of those two subsection.

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] 3 SCR 41, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Committee rendered an oral decision on June 20, 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(15), 1(18) and 1(19). The Committee did not find that the Member breached subsection 1(14) of Ontario Regulation 437/97.

REASONS FOR DECISION

The Committee has carefully reviewed the evidence and submissions presented in this matter. 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 give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

Factual Findings

1) The Member made obscene, offensive and demeaning comments via Facebook to Student 1

The Committee finds it more likely than not that on or about February 25, 2014 the Member made obscene, offensive and demeaning comments to Student 1, as alleged at paragraph 3 of the Notice of Hearing.

Evidence

The Committee received Student 1’s oral testimony in which she described the Facebook messages she received from the Member in detail. Student 1 identified the messages at Exhibit 5 as the Facebook conversation she had with the Member in 2014. As described in Exhibit 5, the Member sent Student 1 a number of obscene, offensive, and demeaning messages, including:

• “You wanna make up lies about me you ugly fuckin’ retard. You better be ready to back it up in court, cause I’m going to be charging you with perjury, mischief, false allegations and contempt of court, and put your lying stupid fugly ass in jail. So bring it on you fuckin’ bitch if you have the balls. I dare you.”

• “I’m going to kill you.”

• “Why don’t you go suck XXX dick some more while XXX shoots his dirty load into your shit filled asshole.”

Student 1 testified that the Facebook messages went back and forth a few times over the course of the day, and that after Student 1 received the last message from the Member she “blocked him”. Student 1 testified that, at the time of this incident, she was [XXX] or [XXX] years old and she felt “threatened and afraid” when she received the Facebook messages from the Member. Student 1 testified that she showed her mother the Facebook messages and reported the Member to the RCMP because she felt threatened.

The Committee also considered Student 1’s Mother’s evidence in relation to this incident. She testified that her daughter, Student 1, had shown her the Facebook messages she received from the Member. Student 1’s Mother identified the messages in Exhibit 5 as the message that Student 1 had shown her in 2014. Student 1’s Mother stated that in 2014 she read the messages and asked her daughter who had sent them. Student 1 identified the Member as the one sending the messages. Student 1’s Mother testified that she “didn’t like what [the Member] was saying” to her daughter and that her daughter looked “hurt and scared” when she showed her the messages.

Credibility and Conclusion

In light of this evidence, the Committee finds that, on a balance of probabilities, the Member made obscene, offensive, and demeaning comments via Facebook to Student 1. The Committee finds that Student 1 presented as a credible witness. As the recipient of the messages, she was evidently in a position to observe this incident and the Facebook messages themselves were produced as Exhibit 5. Student 1 was able to clearly recollect the Facebook conversation with the Member, she was honest and forthright in her testimony, and she did not overstate her evidence. Student 1’s testimony was consistent with the Facebook messages at Exhibit 5, as well as her mother’s oral testimony. Overall, the Committee finds that Student 1 presented as a genuine and reliable witness.

2) The Member made obscene, offensive and demeaning comments via Facebook to Student 1’s Mother

The Committee finds it more likely than not that on or about April 24 and 25, 2014 the Member made obscene, offensive and demeaning comments via Facebook to Student 1’s Mother, including about Student 1, as alleged at paragraph 4 of the Notice of Hearing.

Evidence

The Committee received Student 1’s Mother’s oral testimony in which she described the Facebook messages she received from the Member in detail. Student 1’s Mother identified the messages at Exhibit 6 as the Facebook messages she received from the Member in 2014. Student 1’s Mother testified that she sent the Member a message via Facebook, after she had seen the inappropriate messages the Member sent her daughter (Exhibit 5). Student 1’s Mother wrote to the Member and said “Hi, this is [Student 1’s] mom, whatever u want to say to her I want you to come through me first. I’m gonna take her to the RCMP [to] tell them about the threats on Facebook.” In response, the Member sent Student 1’s Mother a number of obscene, offensive, and demeaning messages, including:

• “I’m sure you’re the one behind it all. I’m sure you’re a drug addict alcoholic just like your lesbian daughter”;

• “Do you know how many fuckin’ times I’ve tried to be cordial to your idiot daughter who thinks she’s a black basketball gangster from a rap video?”; and

• “You bunch of useless drunks want to bad mouth me after I took care of your family and put my money and time and love into them. Your sins are eating your spirit to death so don’t you try to smart mouth me you lying fuckin’ bitch” (Exhibit 6).

Student 1’s Mother testified that after she received the Facebook messages (at Exhibit 6) from the Member, she went to the Manitoba School and showed them to Mr. Miles. She testified that he copied the messages. Student 1’s Mother also testified that she reported the Member to the RCMP.

The Committee also considered Mr. Miles’ testimony in relation to this incident. He testified that Student 1’s Mother showed him the Facebook messages at Exhibits 5 and 6. Mr. Miles testified that he told Student 1’s Mother to report the Member’s conduct to the RCMP, and then made a copy of the messages (at Exhibits 5 and 6) and sent them to the lawyers at the Manitoba School.

Credibility and Conclusion

In light of this evidence, the Committee finds, on a balance of probabilities, that the Member made obscene, offensive and demeaning comments to Student 1’s Mother via Facebook. The Committee finds that Student 1’s Mother testified in an honest and forthright manner about the messages she received from the Member (Exhibit 6). Student 1’s Mother was able to clearly recall the messages that the Member sent her. She was honest if she could not recall certain details and did not overstate her evidence. For example, Student 1’s Mother could not recall if she messaged the Member (via Facebook) on her phone or on her daughter’s iPod. Student 1’s Mother’s testimony was also consistent with the Facebook messages contained at Exhibit 6, and with Mr. Miles’ testimony. Further, Student 1’s Mother had no motive to lie. The fact that she reported the Facebook messages to the RCMP bolsters Student 1’s Mother’s credibility. The Committee does not believe that she would have done so if she were lying. Overall, the Committee finds that Student 1’s Mother presented as a genuine and reliable witness and therefore gave significant weight to her evidence.

3) The Member permitted students to spend time in his home late at night, and permitted students to consume alcohol

The Committee finds it more likely than not that on or about May 17 and 18, 2014 the Member invited or permitted students to spend time in his home late at night, and permitted students to consume alcohol in his home, as alleged at paragraphs 5 and 6 of the Notice of Hearing.

Evidence

Student 1’s Oral Testimony Regarding the Night in Question

The Committee received Student 1’s oral testimony in which she described the events that transpired on May 17 and 18, 2014 at the Member’s home. Student 1 testified that she went with her [XXX] to the Member’s house because “they wanted to go drink there.” Student 1 stated that her [XXX] brought alcohol over to the Member’s house. According to Student 1, there were approximately six to eight people at the Member’s house, three of the people were her [XXX] and some were her friends. All of the people at the Member’s house were students at the time. Student 1 testified that she had been to the Member’s house before with her [XXX], but that the night in question was the first night her [XXX] brought alcohol over. Student 1 testified that her [XXX] were drinking alcohol that night. She stated that they were drinking a “green liquid” that “made them drunk.” Student 1 explained that she left the Member’s home because the vice-principal, Mr. Gilbert, had stopped by the Member’s house. Student 1 testified that she later gave a statement to Mr. Gilbert in which she explained that there were students drinking in the Members home on the night in question (Exhibit 11).

Mr. Gilbert’s Oral Testimony Regarding the Night in Question & the Incident Report

The Committee received Mr. Gilbert’s oral testimony regarding this incident. Mr. Gilbert testified that on early Sunday May 18, 2014, he was woken up by loud drumming coming from the Member’s residence next door. Mr. Gilbert went to the Member’s house, knocked on the door, and a male Grade [XXX] student opened the door. The Member came to the door and when Mr. Gilbert asked “why are there students at your house at this time”, the Member responded “I don’t know.” At this time, Mr. Gilbert explained that he made eye contact with Student 1 who was walking by the hallway and entering the kitchen. Mr. Gilbert testified that he insisted that the Member send the students home. Mr. Gilbert informed the Member that he would be “written up” and the principal and director of education (Mr. Miles) would be informed of this incident. Mr. Gilbert testified that he did not smell any alcohol or see any other substances on the premises. Mr. Gilbert testified that he drafted an incident report about what he saw (Exhibit 10). He also testified that he notified the principal and Mr. Miles of the situation, and spoke to the Member a second time about what had happened and the Member “still had no response.”

Mr. Gilbert’s Oral Testimony Regarding Student Interviews

Mr. Gilbert interviewed Student 1 and her friend (“Student 1’s Friend”) (Exhibits 11 and 12, respectively). Mr. Gilbert stated that he interviewed both students individually, typed what the students were reporting on his computer, and then read their statements back to them to make sure the statements he captured were accurate. As delineated in Exhibit 11, Mr. Gilbert testified that Student 1 reported that students went over to the Member’s home around 5 p.m. on May 17, 2014. She indicated that six students were there, three of those students were drinking, and the Member was aware that those students had been drinking alcohol. According to Mr. Gilbert, Student 1 advised him that the students stayed at the Member’s home until approximately 2am on May 18, 2014, when he (Mr. Gilbert) came by the Member’s house to speak to the Member.

Mr. Gilbert also testified about Student 1’s Friend’s report, as described in Exhibit 12. In her statement, Student 1’s Friend identified the same six students at the Member’s residence on May 17 and 18, 2014. Student 1’s Friend reported that she and two other students were drinking alcohol that evening at the Member’s house. Student 1’s Friend reported that a seventh student stopped by the Member’s house to pick up “homebrew” but that he did not stay at the Member’s house to drink with them.

Mr. Gilbert’s Oral Testimony Regarding the [XXX]

Mr. Gilbert testified that the school charters a flight for all teachers and the Member was supposed to be on that chartered flight because his contract was not extended for the following academic year (2014-2015). The Chief of Council and the RCMP were notified about the events that transpired on May 17 and 18, 2014. The Member was given a [XXX] as a result of the May 17 and 18, 2014 incidents and the fact that the Member was no longer contracted as a teacher at the Manitoba School (Exhibit 8). The [XXX] relieved the Member of his duties as [XXX] and ordered him to leave [XXX] on Thursday June 19, 2014 on the teachers’ chartered flight.

Credibility and Conclusion

In light of this evidence, the Committee finds that the Member permitted students to spend time in his home late at night and permitted students to consume alcohol in his home.

Student 1

The Committee finds Student 1’s evidence to be reliable. Student 1 was in a position to observe the events in question as she was at the Member’s house on May 17 and 18, 2014. Student 1 was able to clearly recall the events of that evening, and her oral testimony was consistent with her prior statement given to Mr. Gilbert (Exhibit 11). Student 1’s testimony was also consistent with Student 1’s Friend’s report of the night in question (Exhibit 12). The Committee finds that Student 1 presented as a credible witness.

Mr. Gilbert

The Committee finds that Mr. Gilbert also presented as reliable witness. Mr. Gilbert was in a position to observe the events in question because he lived next door to the Member and testified to what he witnessed on May 18, 2014. Mr. Gilbert was able to clearly recall the events in question and his testimony was consistent with the incident report he drafted on or about May 18, 2014 (Exhibit 10). The Committee finds that Mr. Gilbert presented as an honest and unbiased witness who appeared to have no animosity towards the Member.

Hearsay Evidence

The Committee also considered Student 1’s Friend’s report to Mr. Gilbert about the night in question (Exhibit 12) and the [XXX] (Exhibit 8) when coming to its conclusion. The Committee recognizes that these documents are hearsay, but notes that hearsay evidence is admissible in discipline hearings and finds these documents to be reliable. The Committee finds Student 1’s Friend’s report (Exhibit 12) to Mr. Gilbert reliable because this statement was made shortly after the events on May 17 and 18, 2014, and the report is consistent with Student 1’s oral testimony and Student 1’s report to Mr. Gilbert (Exhibit 11). Further, the Committee finds the [XXX] (Exhibit 8) to be reliable because it was consistent with Mr. Gilbert’s testimony, Student 1’s testimony, and Student 1’s report to Mr. Gilbert (Exhibit 11).

Minor Inconsistency

The Committee notes that an aspect of Mr. Gilbert’s testimony is inconsistent with Student 1’s oral testimony; namely, Mr. Gilbert testified that he did not smell any alcohol or see any other substances on the night in question. The Committee finds that this inconsistency does not materially affect the credibility of Mr. Gilbert’s evidence or Student 1’s evidence because Mr. Gilbert did not enter the Member’s residence, but instead stayed at the door talking to the Member. Student 1 was in a better position to testify about the Member permitting students to drink alcohol in his home because she was inside the Member’s home. The Committee received direct oral evidence from Student 1 about how students were drinking in the Member’s home. Her oral testimony about how students were drinking in the Member’s home was consistent with her report to Mr. Gilbert (Exhibit 11), Student 1’s Friend’s report to Mr. Gilbert (Exhibit 12), and the [XXX] (Exhibit 8).

4) The Member posted a picture on Facebook which suggested that a former girlfriend was associated with terrorists and/or a killing

The Committee finds it more likely than not that in March 2017, while employed as a teacher at the Nunavut School the Member posted a picture on Facebook that suggested that a former girlfriend was associated with terrorists and/or a killing, as alleged at paragraph 7 of the Notice of Hearing.

Evidence

Ms. Bruce’s Oral Testimony

The Committee received Ms. Bruce’s oral testimony regarding the photo the Member posted on the [XXX] community Facebook page, a site that only [XXX] residents could see and access. Ms. Bruce testified that she received a screen shot of the photo the Member posted on the community’s Facebook page. She stated that the original photo was of James Foley (an American journalist) being beheaded by an ISIS militant. However, the Member had photo-shopped his face over James Foley’s and photo-shopped his then ex-girlfriend, A ([XXX] Ms. Bruce’s), beside the ISIS militant. Ms. Bruce identified Exhibit 13 as the screenshot she received containing the altered photo that the Member posted on the community Facebook page.

After seeing this photo, Ms. Bruce gathered a few other parents and went to the Nunavut School to voice their concerns about the Member. Ms. Bruce testified that she (and the other parents) advised the administration at the Nunavut School that they would not be sending their kids to school if the Member were still working there. Ms. Bruce testified that the Nunavut School later advised her that the Member was going to be suspended and that her son was not going to have the Member as a teacher for the remainder of the academic year.

Ms. Bruce testified that shortly after the Member posted the photo on the community Facebook page, he took it down. According to Ms. Bruce, the Member later posted an explanation for the photo on the community Facebook page. Ms. Bruce testified that the Member’s explanation was that he and A (Ms. Bruce’s [XXX]) were breaking up and the Member was upset. Ms. Bruce stated that the Member’s explanation for posting the altered photo was “nonsense”.

Ms. Bruce testified about the impact this photo had on the [XXX] community. She testified that she was worried and troubled by the Member’s Facebook post. She explained that she was afraid to send her son to the Nunavut School because the Member was her son’s teacher and she “did not know what the [Member] was capable of.” Ms. Bruce testified that this photo was the “talk of the town” and “it was concerning for everyone in the town.”

The Affidavit of William Cooper (“Mr. Cooper”)

In the Affidavit of William Cooper (Exhibit 14), Mr. Cooper, the Executive Director of the Kivalliq School Operations for the Government of Nunavut’s Department of Education, stated that he was directly involved in the investigation into the Member’s Facebook post.

Mr. Cooper stated that the Member was hired on a probationary contract to teach Grade [XXX] at the Nunavut School. Mr. Cooper learned of the Member’s March 25, 2017 Facebook post when a screenshot of it was sent to him (Exhibit 14, Tab A). The photo was of the well publicized ISIS beheading of American journalist James Foley, which had been altered to include the Member’s face over James Foley’s and the Member’s ex-girlfriend beside the ISIS militant’s. Mr. Cooper recognized A (the Member’s ex-girlfriend) in the photo because she was his former student. Mr. Cooper was advised of the Member’s identity by the principal of the Nunavut School.

On March 26, 2017, the principal of the Nunavut School contacted Mr. Cooper with complaints and concerns from community Member. According to Mr. Cooper:

[The Member’s] post appeared to have frightened and angered parents and community members, and some questioned [the Member’s] judgment as a teacher in deciding to post this picture on the community Facebook page. In fact, several parents advised the administration they were concerned for the safety of their children and would not send them to [the Nunavut School] while [the Member] was there (Exhibit 14).

On March 27, 2017, Mr. Copper initiated an investigation into this matter and suspended the Member with pay pending the outcome of the investigation (Exhibit 14, Tab B). On April 7, 2017, Mr. Cooper used his authority as Executive Director to terminate the Member’s probationary contract, effective June 7, 2017 (Exhibit 14, Tab E). Between March 27 and June 7, 2017, the Member remained suspended with pay as Mr. Cooper attempted to arrange for a fact-finding meeting. Among other reasons, the Member’s refusal to respond to Mr. Cooper’s communication led to delays in the investigation. Ultimately, according to Mr. Cooper, because the Member’s employment at the Nunavut School was terminated an official investigation into the matter did not take place.

Mr. Cooper stated that “the media coverage was intense from the start, and remained intense in the days and months following [the Member’s] post.” According to Mr. Cooper, the media reported on the community’s outrage as well as on the Member’s attempts to justify why he posted the picture (Exhibit 14, Tab C).

The Affidavit of Jane George (“Ms. George”)

In the Affidavit of Jane George, Ms. George, a journalist for Nunatsiaq News, explains her involvement in the incident (Exhibit 15). During the 2016-2017 academic year, Ms. George held the position of Senior Reporter where she investigated and reported directly on this matter. She first learned of the Member’s Facebook post on or about March 26, 2017, from a “trusted source”. The photo was of the well-publicized ISIS beheading of American journalist James Foley, which had been altered as set out above. Ms. George identified the Member through independent research comparing other photographs from the Nunavut School. Ms. George’s source identified A as [XXX]. Ms. George stated that she read several Facebook and/or Twitter postings commenting on the Member’s Facebook post. Ms. George stated:

By the end of the day on March 26, 2017, it was clear to me from the postings that I reviewed, as well as from my conversations with people in the community, that many of the [XXX] residents had seen [the Member’s] Facebook post or a screenshot of it that had been circulating, and were outraged and/or frightened by it (Exhibit 15).

Ms. George authored three articles in relation to this incident (Exhibit 15, Tab B). During the course of her investigation into the incident, Ms. George spoke with Nunavut’s Department of Education who confirmed that 160 of the 285 students at the Nunavut school did not attend class on March 27, 2017, the Monday following the Member’s Facebook post. Ms. George also reached out to the Member during the course of her investigation. Ms. George stated, “it was clear within the community that [the Member] acknowledged posting the altered photo.” Further, the Member emailed Ms. George on a couple of occasions acknowledging that he posted the altered photo on the [XXX] community Facebook page, in which he stated: “the picture I had posted…” (Exhibit 15, Tab C and D); and, “I’m the teacher that posted that ISIS photo two years ago…” (Exhibit 15, Tab D). The Member also indicated in an email on April 2, 2017, that he re-posted the original picture on his Facebook homepage, along with a “statement of facts” where he attempted to explain why he posted the original Facebook post (Exhibit 15, Tab C).

Credibility and Conclusions

In light of this evidence, the Committee finds that the Member, while employed as a Grade [XXX] teacher at the Nunavut School, posted a picture on Facebook which suggested that his former girlfriend was associated with terrorists and/or a killing.

Ms. Bruce

The Committee finds that Ms. Bruce presented as a reliable witness. She was explicit and detailed in her testimony regarding the incident. It was clear through her testimony that Ms. Bruce was able to recall the incident as it had a negative impact on her. For example, after seeing a screenshot of the Member’s Facebook post, Ms. Bruce gathered other parents and together they reported the incident to the Nunavut School, advising them that they would not send their children to school if the Member were there. Further, the Committee finds that Ms. Bruce’s role as a District Education Authority member within the community strengthens her credibility as a witness and her ability to testify in an honest and forthright manner.

The Affidavits of William Cooper and Jane George

The Committee recognizes that the Affidavit of William Cooper and the Affidavit of Jane George are hearsay; however, hearsay evidence is admissible in discipline hearings and the evidence in them is sworn by the affiants. As such, the Committee finds the uncontradicted affidavit evidence reliable. The essential evidence was given orally, by Ms. Bruce, and both affidavits were consistent with the material facts of Ms. Bruce’s testimony. Specifically, Ms. Bruce testified that, while the Member was employed as a Grade [XXX] teacher at the Nunavut School, he posted the altered photo on Facebook (as described above) and the [XXX] community was negatively affected by the Member’s actions. Mr. Cooper and Ms. George were both involved in their own independent investigations into this incident, for separate purposes, and each gave evidence as to their direct knowledge and recollection of the events. Mr. Cooper and Ms. George’s affidavits were also consistent with each other.

Further, both Mr. Cooper and Ms. George’s affidavits include emails and articles in which the Member admits that he posted the altered photo on Facebook. The Member’s admission against his own interest does not raise the same concerns about reliability that the hearsay evidence of third parties does, and instead is admissible pursuant to an exception to the rule against hearsay evidence. An admission against one’s own interest is seen to be reliable because people naturally try to make themselves look better rather than worse. Therefore, when an individual admits to doing something bad or wrong, the admission is generally regarded as being reliable. The Committee finds that the Member’s admission to posting the altered photo on Facebook, which are contained in the emails he sent to Ms. George and in the newspaper articles viewed by Mr. Cooper bolsters the reliability of the evidence contained in the Affidavit of William Cooper (Exhibit 14) and the Affidavit of Jane George (Exhibit 15).

Legal Conclusions

The Member engaged in professional misconduct

The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7); he abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

The Committee did not find that the Member breached subsection 1(14) of Ontario Regulation 437/97.

1) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

The Committee finds that the Member failed to maintain the standards of the profession. Although no expert evidence was provided to prove that the Member’s conduct breached the standards of the profession, the Committee accepts College Counsel’s submission that expert evidence was not required in this case because the Member’s verbal abuse of Student 1 was so egregious that it is self-evidently misconduct that breaches the standards of the profession.¹

The Member’s verbal abuse of Student 1 was a clear breach of The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession. By calling Student 1 an “ugly fuckin’ retard”, telling Student 1 “bring it on you fuckin’ bitch if you have the balls” and “why don’t you go suck XXX dick some more while XXX shoots his dirty load into your shit filled asshole”, and threatening Student 1 by saying “I’m going to kill you”, the Member showed a blatant disregard for the ethical standards of care, trust, respect and integrity. He also failed to “promote and participate in the creation of [a] collaborative, safe and supportive learning [community],” as set out in The Standards of Practice for the Teaching Profession. The Member demonstrated a gross disregard for the Student 1’s emotional well-being.

Further, the Committee finds that, by Member permitting students to consume alcohol in his home, the Member was clearly in breach of The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession. The Member breached the ethical standard of care by putting the students’ safety at risk.

By verbally abusing Student 1 and permitting students to consume alcohol in his home, the Member displayed a concerning lack of professional judgment.

2) The Member abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7)

The Committee finds that the Member verbally abused Student 1 by making obscene, offensive, threatening and demeaning comments to her via Facebook. Repulsive comments such as, “you ugly fuckin’ retard”, “bring it on you fuckin’ bitch if you have the balls”, “why don’t you go suck XXX dick some more while XXX shoots his dirty load into your shit filled asshole”, and “I’m going to kill you”, clearly constitute verbal abuse. Members of the profession are expected to communicate respectfully with students at all times and to behave as positive role models. The Member failed to meet these expectations. The Member’s misconduct was hurtful to Student 1 and showed a significant disregard for Student 1’s well-being.

3) The Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

The Committee finds that the Member psychologically or emotionally abused Student 1. Student 1 testified about the impact that the Member’s conduct had on her. She explained that she felt threatened and frightened by the Member’s comments to her via Facebook. The Committee also received evidence from Student 1’s Mother about the impact the Member’s Facebook messages had on her daughter. Student 1’s Mother testified that when Student 1 showed her the Facebook messages, Student 1 looked “sad, hurt and scared.” The Committee finds that Student 1 and Student 1’s Mother gave compelling evidence of psychological or emotional abuse.

4) The Member failed 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 finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. 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.” This provision is commonly understood to mean that teachers must act as positive role models for students. By making obscene, offensive and demeaning comments to Student 1 and Student’s 1’s Mother, by permitting students to spend time at his home late at night and permitting them to consume alcohol, and by posting a picture on Facebook which suggested that a former girlfriend was associated with terrorists and/or a killing, the Member acted as poor role model. Teachers are expected to act as positive role models at all times. The Member’s pattern of repugnant conduct fell well short of this expectation.

5) 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)

The Committee finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The public and the teaching profession do not tolerate the verbal, psychological or emotional abuse of students. Through his conduct, the Member violated the trust that the public places in teachers. The Member’s breach of this trust was unacceptable.

The Member’s continuous inappropriate behaviour on Facebook formed a concerning pattern of behaviour. The Member made obscene, offensive and demeaning comments to Student 1 and Student 1’s Mother via Facebook, and posted an altered photo on Facebook which suggested that a former girlfriend was associated with terrorists and/or a killing. The Member’s actions over Facebook were disgraceful, dishonourable and completely unprofessional.

It was also completely unacceptable for the Member to permit students to be in his home late at night and to permit students to consume alcohol in his home. By doing so, the Member violated appropriate teacher-student boundaries. The Member demonstrated and incredible lack of professional judgment in this case.

6) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

The Committee finds that the Member engaged in conduct unbecoming a member of the teaching profession by verbally, and psychologically or emotionally abusing Student 1. Through his egregious conduct, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers. The Member’s obscene, offensive and inappropriate comments to Student 1’s Mother, and the fact that he permitted students to spend time in his home late at night and permitted students to consume alcohol in his home, is also conduct unbecoming of member of the teaching profession. Modeling rude, inappropriate, and unprofessional behaviour undermines the reputation of the teaching profession. It reflects poorly on the profession as a whole when members behave aggressively, abusively, and disgracefully, as the Member has.

7) The Committee made no legal finding under Ontario Regulation 437/97, subsection 1(14)

The Committee made no finding as it relates to Ontario Regulation 437/97, subsection 1(14). The Committee accepted College Counsel’s submission that a finding should not be made in this case under Ontario Regulation 437/97, subsection 1(14) if a finding was made under Ontario Regulation 437/97, subsection 1(5). The Committee finds that the misconduct that supports a breach of subsection 1(5) is the same misconduct that would support a breach under 1(14) in this case; namely, a breach of the standards of the profession. A finding under both heads of misconduct would be duplicative and therefore a finding should only be made in relation to one of those two subsections. Given that the College was not seeking findings under both heads of misconduct and that a finding was made under subsection 1(5), the Committee makes no finding as it relates to subsection 1(14) of Ontario Regulation 437/97.

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel presented the Committed with a draft order that contained a reprimand, a suspension for a period of 12-24 months, and terms, conditions or limitations, including a psychological assessment and course work on anger management with a focus on sensitivity training. College Counsel submitted that revocation would also be appropriate in the circumstances, given the serious nature of the Member’s abusive behaviour. College Counsel explained that the Committee has the discretion to order a penalty that it considers appropriate in the circumstances.

College Counsel further submitted that revocation was not mandatory in this case, but that the Committee nevertheless has the authority to order it pursuant to section 30(4) of the Act.

According to College Counsel, from the time that the Member was confronted about the events in question until the hearing, he never showed remorse and he deflected blame onto others. According to College Counsel, this is a serious aggravating factor. The severity of the Member’s misconduct and his lack of remorse support the College’s proposed penalty, including a lengthy suspension or revocation of the Member’s Certificate of Qualification and Registration.

College Counsel presented the Committee with eight previous cases decided by the Discipline Committee in order to establish that any penalty between the proposed draft order up to revocation was an appropriate order that fell within the range of penalties ordered for somewhat similar misconduct in the past. According to College Counsel none of the eight cases were analogous to the circumstances of the Member’s case, but they nonetheless established a range of reasonable penalties. The cases submitted were: Ontario College of Teachers v. Hall, 2019 ONOCT 20; Ontario College of Teachers v. Dean, 2018 ONOCT 66; Ontario College of Teachers v. Chong Yen, 2018 ONOCT 68; Ontario College of Teachers v. Buckley, 2017 ONOCT 37; Ontario College of Teachers v. Reinders, 2017 ONOCT 62; Ontario College of Teachers v. Williamson, 2017 ONOCT 20; Ontario College of Teachers v. Balsamo, 2016 ONOCT 2; and Ontario College of Teachers v. Castellano, 2016 ONOCT 100.

PENALTY DECISION

On June 20, 2019 the Committee made the following order as to penalty:

1. The Committee directs that the Registrar of the Ontario College of Teachers immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar.

REASONS FOR PENALTY

In arriving at its decision with respect to penalty, the Committee carefully considered the College’s evidence and submissions. The Committee was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection. In cases such as this, where the Member’s professional misconduct involved the verbal, and psychological or emotional abuse of a student, the objectives of deterrence and public protection are of primary concern to the Committee.

The Committee finds that the Member’s pattern of appallingly unprofessional conduct warrants an order for revocation. The Member engaged in wholly unprofessional and aggressive conduct towards students, a student’s parent, and the local community. The Member abused Student 1 psychologically or emotionally and verbally when he sent her vulgar, aggressive, and threatening messages via Facebook, such as: “you ugly fuckin’ retard”, “bring it on you fuckin’ bitch if you have the balls”, “why don’t you go suck XXX dick some more while XXX shoots his dirty load into your shit filled asshole”, and “I’m going to kill you.” The Committee finds that it is an aggravating factor that the Member made these comments to Student 1 when she was only [XXX] or [XXX] years old. No student should ever receive such aggressive messages from a teacher, especially not a student who is so young.

The Member also made aggressive and demeaning comments to Student 1’s Mother. Specifically, the Member said, “I’m sure you’re a drug addict alcoholic just like your lesbian daughter”, and “you bunch of useless drunks want to bad mouth me after I took care of your family and put my money and time and love into them. Your sins are eating your spirit to death so don’t you try to smart mouth me you lying fuckin’ bitch.”

The Member’s aggressive and unprofessional behaviour continued when he moved to Nunavut. In response to the breakup of his relationship, the Member posted an inappropriate photo on the [XXX] communities’ Facebook page, while he was employed as a Grade [XXX] teacher at the Nunavut School. The photo was of the well publicized ISIS beheading of American journalist James Foley, which had been altered as set out above. The photo negatively impacted the Member’s students and the local community. Parents, like Ms. Bruce, refused to send their children to school if the Member was there because they were concerned about the safety of their children. The Member’s Facebook post was the subject of intense discussion in the town and it also received a lot of media attention.

Further, the Member acted inappropriately and unprofessionally when he permitted students to be in his home late at night and permitted students to consume alcohol. The Member put students’ safety at risk and breached appropriated teacher-student boundaries. The Committee finds his lack of professional judgment in this regard very concerning.

Given the serious and repeated nature of the Member’s misconduct the Committee finds that the immediate revocation of the Member’s certificate is appropriate. Through his repugnant conduct, the Member has demonstrated that he lacks the professional judgment to remain a member of the teaching profession in Ontario. The College does not tolerate the type of conduct that the Member exhibited.

In addition to the finding that the Member’s certificate should be revoked based on the above considerations, the Committee finds that the ungovernability of the Member is another factor weighing in favour of revocation. A member is ungovernable where he or she will not abide by the authority of the College as a governing body. In Law Society of Upper Canada v. Sebastiano Cammisuli, 2012 ONLSHP 157, the factors that informed the determination of whether a licensee is ungovernable include the following:

(a) the nature, duration and repetitive character of the misconduct;

(b) any prior discipline history;

(c) any character evidence;

(d) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;

(e) the degree of willingness to be governed by the Society;

(f) medical or other evidence that explains (though does not excuse) the misconduct;

(g) the likelihood of future misconduct having regard to any treatment being undertaken, or other remedial efforts; and

(h) ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.

The same factors support a finding, in this case, that the Member is ungovernable. The Member engaged in aggressive and unprofessional behaviour on multiple occasions. Although he did not have a prior discipline history at the College, he was disciplined by the administration at both the Manitoba School and Nunavut School when they refused to renew his teaching contract. The Member did not show any remorse for his actions. The Member refused to take responsibility for his actions when Student 1’s Mother confronted him about the Facebook messages to Student 1, when Mr. Miles confronted him and asked him for an explanation regarding the events on May 17 and 18, 2014, and when Mr. Cooper attempted to communicate with the Member during his investigation into the altered Facebook photo incident. Further, the Member’s ungovernability continued up to the day of his hearing. His refusal to communicate with College Counsel, despite numerous attempts, and his lack of participation in these proceedings show a failure to acknowledge that he may have committed serious misconduct and harmed others.

The Committee finds that staff, students, and the school community need to be protected from the Member’s hostile and abusive behaviour. The College exists to govern the profession in the public interest and it cannot fulfill its mandate when it is ignored by a member who is accused of misconduct. The Member’s refusal to abide by the College’s processes makes him ungovernable, which is an aggravating factor militating towards revocation.

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

COSTS SUBMISSION OF COLLEGE COUNSEL

The College sought costs in the amount of $10,000. College Counsel submitted that a $10,000 costs order was appropriate because the Member was uncooperative and did not attend his hearing. College Counsel submitted that it was appropriate to order $10,000 in costs (the daily amount of Tariff A of the Rules that does not require evidence to demonstrate the costs or expenses) because a full contested hearing could have been avoided if the Member was more cooperative with the College. Moreover, the Member was made aware of the fact that the College would seek costs if the matter proceeded to a full contested hearing. College Counsel further submitted that the Committee had the authority to order costs against the Member pursuant to paragraph 4 of subsection 30(5) of the Act and Rule 16.05(3) of the Rules.

COSTS

The Committee rendered an oral decision on June 20, 2019 in which it ordered the Member to pay costs to the College fixed in the amount of $10,000, which must be paid within 90 days of the date of the Committee’s Decision, Reasons for Decision and Order.

REASONS FOR COST DECISION

The Committee finds that a costs order of $10,000 against the Member is appropriate in this case. The Committee has the discretion to make an order fixing costs to be paid by the Member to the College pursuant to paragraph 4 of subsection 30(5) of the Act. Furthermore, pursuant to Rule 16.05(3) of the Rules, the College is not required to prove the cost or expense of a hearing if the request is equal to or less than the daily fee of $10,000 to conduct a hearing, which is set out in Tariff A (appended to the Rules).

It is appropriate to order costs against the Member in this case because he was uncooperative with the College and because he refused to engage in the College’s discipline process in any way, despite the College’s numerous attempts to communicate with him (see Exhibits 3 and 4). Had the Member been more cooperative with the College (even without admitting that he engaged in professional misconduct) it is possible that the parties could have agreed on certain facts, which would have led to a shorter hearing and conserved Committee resources.

Members of the profession are not required to admit their professional misconduct because the College bears the burden of proof. However, the Member was advised that the College would seek costs if it were required to proceed with a contested hearing (see Exhibit 3 at Tab G), which it was. Accordingly, the Committee finds that it is reasonable to order costs in this case. The College (and through their registration fees, members of the profession) should not incur the entire costs of contested hearings where the cooperation of a member facing disciplinary action could significantly shorten the hearing and reduce costs and when the member puts forward no defence whatsoever.

With respect to the quantum of the costs, the Committee finds that College Counsel’s proposal of $10,000 is reasonable because the hearing lasted one day and because the daily amount of $10,000 is set out in Tariff A of the Rules.

Date: July 30, 2019

Nicola Powadiuk, OCT

Chair, Discipline Panel

Godwin Ifedi

Member, Discipline Panel

Stéphane Vallée

Member, Discipline Panel

Footnotes

1. 1See Novick v. Ontario College of Teachers, 2016 ONSC 508 at paragraph 71.