Ontario College of Teachers v. Dugan, 2019 ONOCT 90

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Dugan 2019 ONOCT 90

Date: 2019-10-17

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

Darren James Dugan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DARREN JAMES DUGAN (REGISTRATION #276950)

PANEL: Tom Potter, Chair Richard Filion Sara Nouini, OCT

HEARD: October 15, 2019

Eli Mogil and Kathryn McChesney, for the Ontario College of Teachers Jack Brown, for Darren James Dugan Julie Maciura, 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on October 15, 2019 at the Ontario College of Teachers (the “College”).

2Darren James Dugan (the “Member”) attended 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.

3Two Notices of Hearing dated August 21, 2018 (Exhibit 1) and July 22, 2019 (Exhibit 2) were served on the Member, specifying the allegations and requesting his presence on a date to be determined for the hearing. The hearing with respect to the allegations set out in Exhibit 1 and Exhibit 2 was subsequently set for October 15, 2019. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to section 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

B. THE ALLEGATIONS

5The allegations against the Member in the first Notice of Hearing dated August 21, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Darren James Dugan is guilty of professional misconduct as defined in the Act in that:

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

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

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

(d) 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);

(e) 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

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

6The allegations against the Member in the second Notice of Hearing dated July 22, 2019(Exhibit 2) are as follows:

IT IS ALLEGED that Darren James Dugan is guilty of professional misconduct as defined in the Act in that:

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

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

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

(d) 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);

(e) 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);

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

C. AGREED STATEMENT OF FACTS

7College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Darren James Dugan is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. At all material times, Student 1 was a female student at the School.

4. The Member first met Student 1 during the 2013-2014 academic year when she was in grade [XXX]. The Member was the [XXX] coach for Student 1 from September 2013 to May 2017.

5. The Member and Student 1 grew close during the latter half of Student 1’s grade [XXX] academic year. During grade [XXX], Student 1 qualified for the East Regionals [XXX] competition. The Member and Student 1 travelled to [XXX] together in the Member’s car for the event.

6. During Student 1’s grade [XXX] academic year in 2014-2015, the Member would often give students on the [XXX] team rides to the practice facilitates [sic] at [XXX] School. After practice, the Member would drop off the students at home. Student 1 was regularly among them.

7. In grade [XXX], Student 1 qualified for the Ontario Federation of School Athletic Associations [XXX] competition (“OFSAA”) which was held in [XXX]. The Member and Student 1 traveled to [XXX] for this competition in the Member’s car with another student.

8. At this time Student 1 began to see the Member as a father figure.

9. In June 2015, the Member attended at Student 1’s home to deliver training equipment for use over the summer break. The Member drove the equipment over and dropped them off at Student 1’s [XXX]. Around this time, the Member and Student 1 exchanged phone numbers so that they could keep in touch during the summer break. The Member and Student 1 communicated approximately twice a week during this period via text messages, discussing various workouts and training.

10. During Student 1’s grade [XXX] academic year in 2015-2016, the Member would drive Student 1 home on a regular basis after [XXX] practice. He would sometimes discuss Student 1’s training progress with Student 1’s mother and keep her informed about [XXX] schedules. Student 1 would give the Member letters she had written to him to read after he dropped her off at home. Student 1 was encouraged by her [XXX] to write letters to better express herself. Eventually the Member began to read these letters in front of Student 1 while she was still in his car.

11. In or about the spring of 2016, while the Member and Student 1 were at a [XXX], Student 1 learned that she had not qualified for OFSAA that year. Student 1 and the Member were both upset and they both cried and hugged each other at this time. Following this news, the Member drove Student 1 to her home. Outside her home she began to cry again and requested that the Member allow her to stay at his home because her mother was away that weekend and she did not want to be at home alone. The Member called his wife. Student 1 called her mother for permission, and the Member spoke to Student 1’s mother. The Member told them he was concerned for Student 1’s [XXX] and believed she needed [XXX] to get through this difficulty. The Member’s wife and Student 1’s mother both consented to Student 1 staying over at the Member’s home.

12. Over the weekend that Student 1 stayed at the Member’s home, she slept in the spare room in the basement. The Member, his wife, their two children and his mother-in-law slept in their respective rooms upstairs.

13. Student 1 traveled with the [XXX] team to [XXX], Ontario for the OFSAA competition. She acted as a student-coach for the team and did not compete herself. The Member, Student 1 and the student that did qualify for OFSAA stayed at the [XXX] in [XXX]. The Member and Student 1 stayed in different rooms.

14. While in [XXX], Student 1 left her hotel room late one night to find the Member. Student 1 was on a [XXX] diet and wanted to find a [XXX] friendly restaurant. The Member and Student 1 walked to a nearby pizza parlour, sat on a bench and chatted, played scratch tickets and ate [XXX] pizza together. At one point during this evening Student 1 put her head on the Member’s shoulder.

15. In June 2016, Student 1 made the Member a [XXX] for his birthday. Student 1 also gave the Member [XXX], a [XXX] and wrote him a letter. In the letter Student 1 described to the Member how much he meant to her and that she loved him like a father.

16. At the conclusion of the 2015-2016 academic year, Student 1 was distraught because she would not see the Member during the summer.

17. During Student 1’s grade [XXX] academic year in 2016-2017, the Member and Student 1 travelled together to [XXX] for the[XXX]. There was no [XXX] food available at the competition facilitates [sic]. At one point during the trip, the Member and Student 1 went to a restaurant which served [XXX] food.

18. As a result of the relationship with Student 1, the Member received a discipline letter from the Board and was required to attend a training course on professional boundaries. Attached hereto and marked as Exhibit “B” is a copy of the discipline letter dated June 26, 2017.

19. If called upon to testify, the Member would stated [sic] that following the issuance of the discipline letter, the Member received verbal permission from his principal, Mr. Chris Boulay, to continue to train Student 1 outside of school through[XXX].

20. Student 1 returned to the School during the 2017-2018 school year. Student 1 did not have any classes with the Member, nor was the Member her coach at this time. Student 1 had a spare period at the same time that the Member had a teacher preparation period. Student 1 was often in the presence of the Member during this time and would seek out the Member daily to spend time with him.

21. On or about September 19, 2017 the Member was asked to cover a class for another teacher during his preparation period. Student 1 was not registered for that class. Nonetheless she was present in the classroom during the time the Member was teaching that class and left with the Member when he left the classroom.

GUILTY PLEA

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

23. 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(18)[unprofessional only] and 1(19).

24. 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 the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

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

D. DECISION

8With the Member’s consent, and in accordance with section 9.1 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, College Counsel requested that the Panel combine both Notices of Hearing so that this matter could proceed in a single hearing. The Panel granted this request.

9Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b), (c) and (d) of both of the Notices of Hearing, namely that the Member contravened subsections 1(7.2), 1(14) and 1(15) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Panel granted these requests.

10Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on October 15, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional only] and 1(19).

E. REASONS FOR DECISION

11The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 21 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 professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that, between 2014 and 2017, the Member engaged in an inappropriate personal relationship with Student 1, who was described as a “fragile student” by the Board (see Exhibit 3, Tab B), that went beyond the appropriate boundaries of a teacher-student relationship. He drove Student 1 to [XXX] events, gave her rides home from [XXX] practices, provided her with his telephone number so they could keep in touch over the summer break, allowed her to stay at his house while his family was present and accompanied her to restaurants during [XXX] competitions. As a result, Student 1 began to see the Member as a “father figure”. She developed such an attachment to the Member that she wrote him a letter in June 2016 describing how much he meant to her and became distraught at the prospect of not seeing him over the summer.

12The Member engaged in conduct that permitted Student 1 to develop inappropriate feelings for him that went beyond his role as her teacher and coach. Teachers should always prioritize the wellbeing of their students and behave professionally so that they do not abuse their position of trust and authority. By allowing his relationship with Student 1 to develop beyond the boundaries of a teacher-student relationship, the Member engaged in behaviour that was unprofessional and unbecoming of a member.

F. PENALTY DECISION

13The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on October 15, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to 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. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one month commencing on the 15^th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, 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 Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary violations, subject to the following conditions;

(i) the Member will provide to a 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 and Reasons of the Discipline Committee;

(ii) upon 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 thirty (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:

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

G. REASONS FOR PENALTY DECISION

14The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by the parties: Ontario College of Teachers v. Sergeant, 2018 ONOCT 44, Ontario College of Teachers v. Avison, 2018 ONOCT 71, Ontario College of Teachers v. Grima, 2018 ONOCT 16 and Ontario College of Teachers v. Wilson, 2019 ONOCT 41.

15The Panel took note of two aggravating factors in this case, the first being the prolonged duration of the Member’s misconduct over the entire high school experience of Student 1. The second aggravating factor is the fact that the Member had been disciplined by his employer in June 2017 and yet, in September 2017, he again engaged in similar unacceptable misconduct. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. Members are expected to serve as role models for students. They are also expected to create a safe and supportive environment for learning and to manage their professional practice in accordance with the standards of practice of the profession. The Member failed to do so by engaging in an inappropriate relationship with Student 1, who was vulnerable. Vulnerable students may develop an unhealthy attachment to their teachers, and teachers must be careful to not foster inappropriate relationships with them. The reprimand will allow the Panel 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.

17The Panel finds that a course of instruction regarding boundary violations will assist in the rehabilitation of the Member. The Panel recognizes that the Member has already completed a professional boundaries course. Nevertheless, the Panel believes that an additional boundaries course that is tailored to the Member’s specific misconduct outlined in this decision is warranted. 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 students.

18Given the nature and severity of the Member’s conduct, the Panel finds that a one-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and confirm that a 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.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.