DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Weglarz 2019 ONOCT 95

Date: 2019-08-15

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

Andrew Alexander Weglarz, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW ALEXANDER WEGLARZ (REGISTRATION #647896)

PANEL: Jonathan Rose, Chair Marlène Marwah Stéphane Vallée, OCT

HEARD: July 15 and 16, 2019

Stephanie Sugar and Steven Chadwick, for Ontario College of Teachers

No one appearing for Andrew Alexander Weglarz

Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

This matter came on for hearing before a panel of the Discipline Committee (the "Panel") on July 15 and 16, 2019, at the Ontario College of Teachers (the "College") at Toronto.

A Notice of Hearing (Exhibit 1) dated December 21, 2018 was served on Andrew Alexander Weglarz (the "Member") inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for July 15 and 16, 2019.

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

Counsel for the College submitted the Affidavit of Annie Lacroix (Exhibit 2) affirmed on July 11, 2019, to show 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, should a finding of guilt be made by the Panel. In this affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, outlined College Counsel's communications with the Member and service of documents. In particular, on January 17, 2019 a copy of the Notice of Hearing and disclosure brief were delivered to the Member's last known address on file with the College. These documents were accepted by his spouse, who indicated she was authorized to accept documents on the Member's behalf. The following day the Member emailed College Counsel with questions about how to deliver his submissions in the disciplinary proceeding and indicated he would represent himself. The Member subsequently consented to service by email and provided College counsel with his email address for that purpose.

College Counsel emailed the Member the Notice of Hearing and disclosure brief on March 8, 2019 and, in subsequent correspondence, the parties agreed upon July 15 and 16, 2019 for the hearing date. Between May 13 and July 5, College Counsel repeatedly confirmed the July 15 and 16, 2019 hearing dates with the Member in her emails, to which the Member generally responded. On July 5, 2019, Counsel outlined the College's position on penalty, costs and provided summaries of the anticipated evidence of the two witnesses who would testify orally. On July 11, 2019, College Counsel provided the Member by email (Exhibit 3) with her briefs of documents and authorities for the hearing as well as the affidavit of Chi-Kun Shi.

Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing, which states explicitly that the hearing can proceed in the absence of a party, and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought by the College, should a finding of guilt be made by the Panel. The Panel delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Panel therefore heard this matter in the absence of the Member.

OVERVIEW

The Member was employed as a teacher by [XXX] School (the "School") in Toronto. The College alleges that the Member sent emails containing sexually explicit content and/or language to colleagues and administrators at the School in October and November 2015. Further, the Member allegedly contacted students of the School while under suspension from the School and despite a direction to have no student contact. The School terminated the Member's employment following these events.

The Panel's task is to determine whether the allegations have been proven on a balance of probabilities and if so, whether the Member's conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel found that the Member engaged in professional misconduct as set out below.

THE ALLEGATIONS

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

IT IS ALLEGED that Andrew Alexander Weglarz 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 failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

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

(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Andrew Alexander Weglarz is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed as a teacher by the [XXX] School (the "School"), a private school in Toronto, Ontario.

3. On or about October 17, 2015, the Member sent emails containing sexually explicit content and/or language to colleagues at the School.

4. On or about November 2, 2015, the Member sent an email containing sexually explicit content and/or language to colleagues and the administration at the School.

5. The Member contacted students of the School while he was suspended from the School, despite having been directed to have no contact with students during his suspension.

6. The Member's employment was terminated by the School, effective October 19, 2015.

THE MEMBER'S PLEA

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

THE EVIDENCE ON FINDING

The College presented affidavit, oral and documentary evidence. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel's reasons for decision below. The following is a brief summary of the College's evidence.

Affidavit and Oral Evidence

The College led the evidence of four witnesses. Two witnesses gave evidence by affidavit: (1) Annie Lacroix, a law clerk with McCarthy Tétrault LLP, lawyers for the College (affirmed July 11, 2019); and (2) Chi-Kun Shi, the School's lawyer (sworn July 10, 2019). Two witnesses gave evidence orally at the hearing: (1) Elizabeth Dahl, the School's Head of ESL at the material time; and (2) Lauren Kemp, an ESL teacher at the School at the material time.

The Panel found that the witnesses' evidence was credible and consistent with respect to all material facts.

As the Member chose not to participate in the hearing, the witnesses were not cross-examined nor was evidence presented in his defence.

Affidavit of Annie Lacroix (Exhibit 2)

Ms. Lacroix reviewed the history of this disciplinary proceeding and attached copies of College Counsel's correspondence to and from the Member in support of College Counsel's submissions on proper service and adequate notice, as described above.

Exhibit M to Ms. Lacroix's affidavit is the Panel's Decision and Reasons on the Member's April 25, 2019 motion to dismiss or stay the disciplinary proceedings. College Counsel pointed out that the Panel hearing that motion determined that the Member did not dispute sending the emails but did dispute their inappropriateness (Exhibit 2, Tab M, p. 10).

Affidavit of Chi-Kun Shi (Exhibit 13)

Ms. Shi gave evidence about the School's decision to terminate the Member's employment and the Member's subsequent unsuccessful legal proceedings and complaints against the School and its staff. She stated that the Member was suspended on October 19, 2015 but, in order to protect his privacy, students were told that he was ill to explain the absence. On November 2, 2015, the School terminated the Member's contract for cause, effective October 19, 2015.

Ms. Dahl's Testimony

Elizabeth Ann Dahl, OCT, joined the School in 2014 and, in 2015, was Head of ESL. As Head of ESL, her responsibilities included ensuring new teachers followed the required standards and curriculum and ensuring there was consistency amongst ESL classes at the same level taught by different teachers.

The Member began teaching at the School in September 2015. He was assigned a Level 4 ESL class and a physical education class. Ms. Dahl was his supervisor in respect of the ESL class.

Around the end of September or beginning of October, she approached the Member to discuss concerns about how he was teaching his ESL class. She questioned the appropriateness of an assignment and the accelerated review of a novel. The Member was "dismissive" of her concerns and reacted aggressively by raising his voice and leaning forwards into her personal space.

On October 6, 2015, the Member emailed Ms. Dahl to complain of a "toxic" environment and "dysfunctional gossip" at the School. Ms. Dahl went to see him about these concerns but he refused to speak with her. He asked her to provide 24 hours notice of any meeting and to come to his office in room 211. Although Ms. Dahl felt the Member was being rude and unreasonable, she complied with his request and scheduled a meeting by email (Exhibit 6) for October 9. That meeting lasted at least three hours as he raised many different issues. He subsequently sent her an email, copied to the vice-principal, purporting to confirm the "highlights" of the meeting and misinterpreting Ms. Dahl's remarks. She wrote an email clarifying what she said. The email chain was marked as Exhibit 7.

On Saturday, October 17, 2015, she received an email from the Member that was copied to all the ESL and English department staff at the School. In the email (Exhibit 8), the Member proposed to teach a student in his ESL class "to speak with dolphins" with the help of "newly created pelvic language and paddles from 50 Shades of Grey"; claimed to be a Nigerian girl whose consumer information was compromised by a North Korean hacker group; and, described his plan to attend "The Everything to do with Sex Show" on the weekend in detail with references to "whips", "dildos", "male and female porn stars" and "smelling Ron Jeremy's finger". He ended the email with "If you have questions, I will be blood-letting aborted fetuses whilst praising the dark lord in room 211. I found Jesus, he was in my closet behind the basketballs. Sincerely, Mr. Wiggly-Pus".

Ms. Dahl testified that the email "melted my mind because so many pieces didn't make sense and should have never made it into an email relating to work". She was also concerned the Member believed this was acceptable to send as a professional communication because it made her wonder what he considered acceptable in the classroom.

While she initially considered the possibility that the Member's email account had been hacked, she concluded that the email must have been written by the Member because there were too many details that a hacker could not have known, such as the student's name, the Member's room number and the reference to materials actually being studied in class. She also dismissed the possibility that a student obtained access to his School computer as the email was sent on a Saturday when the building was locked and the sophistication of the language in the email would have been beyond his students' English level.

On October 17, Ms. Dahl spoke with almost all of those copied on the email, representing about 50% of the School staff, and many expressed concerns about the Member and his [XXX]. Ms. Dahl decided to give the Member a chance to explain before forwarding the email to her supervisors.

Ultimately, Ms. Dahl forwarded four highly concerning emails from the Member to her vice-principal, Camelia Popescu, on October 18. The second email (Exhibit 9) was sent on October 17 to Bernadette Perreira, a social studies and ESL teacher who was Head of Canadian and World Studies at the School, and copied to Ms. Dahl. Ms. Perreira also stood in a supervisory role with respect to the Member as he was going to teach Civics and Careers, a class within her department, during the next module. In this email, the Member wrote "We are going to be besties #ZOMFGLMFAO. I can be Mr. Wiggly-Pus and you can come up with a nick-name that will preserve your professionalism while conveying a friendly avatar outward." He also proposed: "We can have a secret code that only we know and we can make sure that the other person says the code before we talk so that we know everything that gets said is being said to the real person and not an alien in disguise" and "We can have a secret hand-shake and have students build a fort out of pillows in the style of a medieval castle." Ms. Dahl described this email as "odd" but "not sexual" like Exhibit 8. She spoke with Ms. Perreira who was nervous about the two emails, uncomfortable about seeing the Member on Monday and expressed a concern that he was [XXX].

The third and fourth emails (Exhibit 10) were sent on October 17 only to Lauren Kemp, an ESL teacher, who forwarded them to Ms. Dahl. Ms. Kemp had provided the Member with some resources on sexual education that were appropriate for ESL learners because sexual education was a component of the Physical Education course. The Member asked Ms. Kemp for her views on sex and posed questions such as "Do you see sex as something that a woman has and something that a man gets to have?" and "When is dressing in revealing clothing empowering and when is dressing in revealing clothing objectifying?" Ms. Kemp called Ms. Dahl and was very upset because she felt the emails were inappropriate, made her very uncomfortable and were sent only to her.

Ms. Dahl spoke with Vice-Principal Popescu on Sunday, October 18 and understood that the vice-principal and the principal would meet with the Member on Monday. The owner of the School was outside the country and he was the only one with the authority to fire the Member. Ms. Dahl was very concerned about the Member's [XXX] and the [XXX]: "everyone was on edge" and things were "very intense". She subsequently learned that the principal suspended him.

The last email (Exhibit 11) came on November 2, the day the Member was to meet with the School's owner. The Member sent the email to everyone connected with the School including the owner's wife and the owner's mother. Ms. Dahl believed this was the Member's "final piece" because of its length, broad distribution and greeting. The subject line was "The Sex Show". The email was sprinkled with hashtags referring to the Disney movie Frozen, ending with #letitgo. The Member wrote:

Hey [XXX] Staff,

After attending The Sex Show, I can say with confidence that I have been professionally developed.

I attended a Halloween Party and think that we should all consider dressing in women's lingerie for the school's Christmas event; it was the best party I've experienced and I'm sure the kids would appreciate the effort #doyouwanttobuildasnowman.

The seminar was more work than play; it was tedious to see scantily clad attractive women walk around freely as if there was nothing wrong. I hope they cry themselves to sleep with shame #hesabitofafixerupper.

These are some of the notes I've made:

1. There are some similarities between teachers and those that work in the sex industry

(a) We are both expected to adhere to a specific garb.

(b) Teachers, like sex workers can be exploited while being seen as sex symbols.

(c) Sex workers can make excellent educators.

(d) In both fields, there is an ebb and flow.

2. I attended a seminar focused on cunnilingus and thought the presenter seemed familiar. There were a number of dildos spread out over the table and I recognized a large purple dildo from Teacher's College. It turns out that the presenter was a guest speaker in one of my instructional classes. I left after learning about "The Pussy Plunger" and "The Vulcan Clit Grip" (I may have made those names up myself) but I did not say goodbye. I wasn't sure if starting a conversation with, "Hey! I recognized your purple dildo from Teacher's College. You were my teacher for a day! How's your husband?" would have gone over well #forthefirsttimeinforever.

3. The [XXX] won and I've lost a bet so I think I'm going to try the gay. I probably should have seen the signs; my private browser history is chalk-full of lesbian films and Bernie said that because all my cousins are girls who painted my nails when I was young, I have a better chance at successful gaydom. I may run for political office; I've heard they get free dental and parking spots #rumoursthough. You can refer to me as a Gay-In-Training ("GIT" for short), Your Gayellency, Your Gaynificence or Your Gayjesty. I definitely caught a gayous bug. I've heard there will be an attempt at a gayemia vaccine some time in 2016. We should be careful though; we all know that vaccines cause autism #brodoyouevengay.

With my newly acquired gayhood, I would like to start a group that promotes the awareness of gayed rights through the production and direction of lesbian films. I've seen more than my fair share of them and, coupled with the girls I've met at bars who will willingly tongue-kiss each other in front of large groups of people for free drinks to promote LGTBQ rights, I think I have what it takes to succeed. I can even aim to have it displayed at various bars in The Village during The Parade and include various psychedelic themes in the films to compliment the excessive consumption of drugs and alcohol patrons use to promote equality. Gayward Ho!

I may also use my gayship to help my female friends (sorry, not colleagues #professionalism); if any of them would like tips on how to tongue-kiss their boyfriends, I will make myself available. I am the gay so it totally doesn't count. I hope they're gentle though; the gayness causes sensitivity.

This seminar has complimented my personal experiences quite well. Personally, I learn more through "experiential learning" or "trial and error" (emphasis on error) but it was really nice to have some theoretical information to compliment my wonderfully practical experiences. The first girl I ever liked was an Iranian girl who didn't shave her armpits, I though the guitarist from The Smashing Pumpkins was an attractive female and I had a one-night-stand with a girl at a wedding when later that same week, her grandmother died. Now, club promoters are confusing my friends and I for a walking orgy and my colleagues have taken an opportunity or two to question my sexuality. I started from the bottom and now I'm here.

There is a burlesque show in March of 2016 hosted by a company called Monde Osé. They specialize in hetero/homo/bi multicultural experiences. It may be something some staff members could use to take a step outside of their respective comfort zones. On the way home, I third-wheeled a date with two lesbian friends at a restaurant called The Warehouse on Queen St. It's a really fun place and everything on the menu (minus drinks) is $4.95. If burlesque isn't your thing, you could try this place instead.

I Kissed a Girl and I Liked it,

Mr. Wigildy-Wobbly-Walla-Walla-Bing-Bang

#letitgo

Andrew Weglarz, OCT

Ms. Dahl testified that the "entire email raises concerns" because of its sexual content and negative stereotypes of the gay community. She found it highly offensive and "shocking" that he would send this email instead of meeting with the owner. She was also concerned because the School has a number of LGBTQ students for whom school should be a safe environment.

Ms. Kemp's Testimony

Lauren Janette Kemp, OCT, joined the School in August 2015 as an ESL teacher. She met the Member at a staff meeting before the school year commenced and they discussed sexual education resources. He subsequently requested those resources by email. On Saturday, October 17, 2015, she received the email sent to the whole ESL department (Exhibit 8). She was "shocked" and couldn't understand "what would possess someone to send an email like this" because it was "targeted towards women and sex". When she subsequently received the next two emails (Exhibit 10), she became concerned for her safety because the Member emailed her privately and seemed comfortable posing "wildly inappropriate questions" to her. On the following Monday, she saw the Member in the photocopy room and experienced such fear that she locked her classroom door that day.

She received the November 2 email (Exhibit 11) and felt it was "intentional", "wildly inappropriate because of its sexual nature" and contained homophobic comments and comments reflecting negative views about women.

The Member was initially suspended because the School's owner was travelling. He was subsequently fired. Ms. Kemp said she would have quit if the Member returned to the School because he made her feel so uncomfortable. His conduct left a "lasting impact" on her and re-reading his emails makes her realize how serious it was.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

College Counsel cited the professional and ethical standards for the teaching profession at section 32 of the Bylaws of the Ontario College of Teachers. In particular, she noted the obligation to "promote and participate in the creation of collaborative, safe and supportive learning communities" at section 32.01(d) and the ethical standards of care, respect, trust and integrity at section 32.02. She also cited the College's Professional Advisory on the Use of Electronic Communication and Social Media and, in particular, the warning at p. 5 that misuse of electronic communications could have serious disciplinary consequences.

She submitted that the Member's conduct and emails clearly demonstrate the alleged professional misconduct, noting that:

• he was aggressive and dismissive towards Ms. Dahl when she raised valid complaints about his teaching and he unfairly questioned her leadership;

• his emails were shocking and frightening, contained misogynistic, sexual and homophobic content and targeted many individuals at the School;

• he admitted sending the emails so the only issue is whether the emails constitute professional misconduct; and

• the emails are so egregious that the Panel does not require expert opinion to determine if a standard of care was breached and can find misconduct on the face of the evidence alone.

College Counsel referred the Panel to the following decisions in support of her submissions: Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15, at pp. 7-8; Ontario College of Teachers v. Fair, 2016 ONOCT 21, at pp. 11-12; Ontario College of Teachers v. Béarez, 2019 ONOCT 17, at p. 11; and Ontario College of Teachers v. Blake, 2018 ONOCT 57, at pp. 29-32.

The Panel queried why the College treated this matter as a disciplinary issue instead of a [XXX] matter. College Counsel explained that the Member did not provide [XXX] that would have made it appropriate to treat this as a [XXX] matter and there is no mechanism in the College's legislation to compel the production of [XXX] from a Member. She indicated that she would address this issue further during the penalty phase of the hearing, should a finding of misconduct be made. Independent Legal Counsel confirmed that the College currently lacks the ability to mandate an independent [XXX] examination and referred the Panel to Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, in support of the proposition that it was not improper to treat it as a disciplinary matter. She further advised the Panel that they could not make a finding of something that had not been alleged in the Notice of Hearing because it would be procedurally unfair to the Member to make such a finding without notice.

DECISION ON FINDING

Onus and standard of proof

The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.

Decision

Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on July 15, 2019, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel 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

Admitted Facts

The Member admitted, during the course of argument on his April 25, 2019 motion to dismiss these proceedings, that he sent the emails in question. His admission is noted in the transcript of the motion (Exhibit L to Ms. Lacroix's affidavit at p. 12, lines 21-23) and referenced in the Panel's decision (Exhibit M to Ms. Lacroix's affidavit at p. 10).

Contested Facts

As College Counsel submitted, the central issue in this proceeding is whether the Member's emails to colleagues and staff constituted professional misconduct, as alleged in the Notice of Hearing. Having considered the oral, affidavit and documentary evidence, the Panel made the factual findings set out below.

1) The Member sent emails on or about October 17, 2015 containing sexually explicit content and/or language to colleagues at the School

The Panel finds that the Member sent emails on October 17, 2015 containing sexually explicit content and language to colleagues at the School, as alleged at paragraph 3 of the Notice of Hearing.

The Member sent three emails on October 17, 2015: Exhibit 8 was an email to the entire ESL and English departments at the School and Exhibit 10 was two emails to Lauren Kemp alone.

Exhibit 8 contains the following sexually explicit content and language:

• "the attack [of the North Korean hacker group] pushed me to pursue my interest in the dance choreography from Magic Mike XXL and learn to "tell lies with my hips" (figuratively speaking of course)";

• "newly created pelvic language and paddles from 50 Shades of Grey"; and

• "On a professional note, "The Everything To Do With Sex Show" is this weekend. I've already bought a weekend pass and have perused the schedule. There will be Burlesque Shows, lingerie, whips, swings and dildos. They'll have more dildos than Bubba Gump has shrimp. You can meet male and female porn stars for autographs and photos. I went a few years ago and was hoping to have a picture taken of me smelling Ron Jeremy's finger but then I decided that I probably didn't want to be smelling Ron Jeremy's finger. Tickets are pretty cheap ($26 for the weekend) and if you're looking to make things more interesting with your special someone or trying to find something to help make things interesting with someone, it's a great place to find resources. Think about it."

The language is explicitly sexual, with references to "50 Shades of Grey" (an erotic novel featuring sadism/masochism sexual practices), "Burlesque Shows", "lingerie, whips, swings and dildos" (sexual toys), "male and female porn stars" and "Ron Jeremy" (a pornographic actor). The content is also explicitly sexual as the Member graphically describes "The Everything to do with Sex Show" to his colleagues and exhorts them to attend with their "special someone" or to "make things interesting with someone".

Exhibit 10 contains the following sexually explicit content and language:

• "I would like to hear your views on sex"

• "Do you see sex as something that a woman has and something that a man gets to have?"

• "Do you think every man should appreciate any sex that he can have?"

• "Is sex like pizza (even when it's bad, it's still good)?"

• "From a female perspective, can you describe the dynamic between man and woman? More specifically, should men always pursue and should women always be coy?"

• "When is dressing in revealing clothing empowering and when is dressing in revealing clothing objectifying?"

The Member had no professional purpose in soliciting his colleague's views on sex and the language he used is highly provocative.

2) The Member sent an email on or about November 2, 2015 containing sexually explicit content and/or language to colleagues and administration at the School

The Panel finds that the Member sent an email on November 2, 2015 containing sexually explicit content and language to colleagues and administration at the School, as alleged at paragraph 4 of the Notice of Hearing.

The November 2, 2015 email (Exhibit 11) has been reproduced under the section describing Ms. Dahl's testimony. The language of Exhibit 11 is explicitly sexual with its references to "women's lingerie", "cunnilingus", "dildos", tongue kissing, "orgy" and "burlesque". The content is equally sexual, with its graphic description of "The Sex Show", comparison of teachers to sex workers and suggestion that staff attend a burlesque show. Furthermore, the comments about homosexuals and lesbians are homophobic and contain negative stereotypes, and the comments about "scantily clad women" are misogynistic.

3) The Member contacted students while under suspension from the School despite a direction to have no contact

The Panel does not find, on a balance of probabilities, that the Member contacted students while under suspension, as alleged at paragraph 5 of the Notice of Hearing.

College Counsel submitted that a November 2, 2015 email from the Member to the School's owner (Exhibit A to the affidavit of Chi-Kun Shi) proved this allegation. In that email, the Member asked for confirmation that "The school informed students that I was "sick". College Counsel maintained that, since the Member was suspended on October 19, 2015, he must have learned of the School's communication from a student and therefore must have contacted students himself while under suspension. No evidence was led to identify the alleged student or the particulars of the alleged communication. The Panel finds that it cannot safely draw this inference on the evidence before it. It is possible this information came to the Member's attention without him initiating contact with a student; for example, it is possible a student contacted him and disclosed this information after he was suspended.

Legal Conclusions

The Member engaged in professional misconduct

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

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

The Panel 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 Panel accepts College Counsel's submission that expert evidence was not required in this case because the Member's sexually explicit, misogynistic and homophobic emails are so egregious that they are self-evidently misconduct.¹

The Member's emails clearly breached the professional and ethical standards at section 32 of the Bylaws of the Ontario College of Teachers. The content and language was incompatible with the "collaborative, safe and supportive learning communities" the Member was obliged to promote in accordance with section 32.01(d). Furthermore, the emails breached the ethical standards in section 32.02. In particular, the Member violated the standards of respect, trust and integrity expected of teachers in their professional relationships.

The College's Professional Advisory on the Use of Electronic Communication and Social Media states, at p. 5, that "Inappropriate online, email and telephone conversations between members and others, including students, colleagues, parents/guardians, employers, family and friends, expose members to the possibility of disciplinary action." The sexually explicit, misogynistic and homophobic language and content of the emails was clearly inappropriate and constitutes misconduct.

The emails are so extreme as to raise questions about the Member's [XXX] at the material time. Indeed, Ms. Dahl and Ms. Kemp testified about their concerns as well as those of their colleagues. The Panel relayed their own concern to College Counsel on this very issue. However, the Panel accepts the fact that the Member did not provide the College with any [XXX] so as to treat this matter as a [XXX]. The Member's conduct was extremely disruptive; he frightened his colleagues and provoked concern about what he may have expressed to his students. The College was required to take action.

The Panel accepts Independent Legal Counsel's advice that if the College is unable to resolve its concerns within the [XXX] stream, the College may address the Member's conduct via the misconduct stream. The Panel also accepts Independent Legal Counsel's advice that a finding outside the allegations in the Notice of Hearing would be procedurally unfair to the Member and that it is appropriate to proceed as a disciplinary matter.

2) The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)

The Panel finds that the Member failed to comply with section 32 of the Bylaws of the Ontario College of Teachers, as described above.

3) 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 Panel finds that the Member failed to comply with section 264(1)(d) of the Education Act, which provides that a teacher is obliged "to assist in developing co-operation and co-ordination of effort among the members of the staff of the school". The Member was aggressive and dismissive with Ms. Dahl when she raised concerns about his teaching methods, instead of co-operating with her to ensure his ESL class was consistent with other ESL classes. The emails deeply upset School staff and made them feel uncomfortable and frightened. Sending disturbing and offensive emails to colleagues is incompatible with developing co-operation and co-ordination among staff.

4) 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 Panel finds that the Member's conduct and emails would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The sexually explicit, misogynistic and homophobic content and tone of the emails was highly inappropriate and unprofessional. Communications between teachers should always be respectful and avoid personal comments which may be interpreted as offensive. The Member's emails were extremely disrespectful and offensive.

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

The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession by sending highly offensive emails to School staff with sexually explicit, misogynistic and homophobic content. In so doing, the Member undermined the reputation of the teaching profession and the trust and confidence that the public places in teachers.

THE EVIDENCE ON PENALTY

College Counsel called Dr. Philip Klassen as an expert witness for the penalty phase of the hearing. Dr. Klassen is a [XXX] and Vice-President, [XXX]at [XXX]. He is an Assistant Professor in the [XXX] at the University of Toronto. He also has a private practice in [XXX]. He estimated that he has testified in court, on dangerous offender applications and before disciplinary tribunals more than 1000 times. The Panel qualified Dr. Klassen as an expert witness and marked his May 11, 2019 report as Exhibit 14. A copy of this report was served on the Member by email on May 31, 2019 (Exhibit Q to Ms. Lacroix's affidavit) and acknowledged by the Member in a responding email (Exhibit R to Ms. Lacroix's affidavit).

Dr. Klassen opined that, on the basis of a paper review, he was not in a position to determine whether the Member was suffering from a [XXX] or whether he may [XXX]; however, he believed the Member's emails and conduct were sufficiently concerning as to warrant further inquiry. He recommended that the Member receive a [XXX] performed by a [XXX].

PENALTY SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that the appropriate penalty was an oral reprimand, a suspension of up to six months, completion of a course on appropriate professional boundaries and anger management, and a series of terms, conditions and limitations ("TCLs") on the Member's Certificate of Qualification and Registration. Those TCLs are primarily focused upon requiring the Member to: (1) update his information with the College; (2) prior to returning to teaching, undergo an assessment by a [XXX]; (3) prior to returning to teaching, provide the Registrar with information from his [XXX] and (4) comply with the [XXX] while he is teaching. College Counsel also asked that the Registrar be directed to revoke the Member's Certificate if any of the TCLs are not fulfilled within the specified time periods and the Member fails to cure such breach within 30 days.

College Counsel cited the following decisions in support of her submissions on suspension: Ontario College of Teachers v. Vandenberg, 2018 ONOCT 15, Ontario College of Teachers v. Odjig, 2018 ONOCT 27, Ontario College of Teachers v. Fair, 2016 ONOCT 21, Ontario College of Teachers v. Béarez, 2019 ONOCT 17, and Ontario College of Teachers v. Charette, 2018 ONOCT 32.

College Counsel argued the TCLs are appropriate because of Dr. Klassen's concern about the Member's [XXX]. An examination by a [XXX] would assist with [XXX].

The proposed TCLs include requiring the Member to:

• [XXX].

These TCLs constitute a system of monitoring and compliance for a period of two years following continuation or commencement of a teaching position with the possibility for extension if recommended by the Member's [XXX].

College Counsel cited Ontario College of Teachers v. Blake, 2018 ONOCT 57, in support of directing the Registrar to revoke the Member's Certificate in the event he fails to fulfill the TCLs within the specified time periods, and argued that the College should not be compelled to go through another proceeding should the Member refuse to remediate his behaviour.

Independent Legal Counsel raised a concern that giving the Registrar the authority to revoke the Member's Certificate of Qualification and Registration in the event of non- compliance with the TCLs may be seen as procedurally unfair. She referred the Panel to Amerato v. Ontario (Registrar), 2004 CanLII 34772 (ON SCDC), for the proposition that revocation without a hearing could be invalid. She suggested if the Panel determined that revocation was appropriate, it could either order immediate revocation under section 30(4)1 of the Act or, alternatively, under section 30(4)4 of the Act order revocation but suspend its implementation if the Member complied with the TCLs for a certain time period.

College Counsel conceded that revocation was likely outside the reasonable range of penalties and agreed with Independent Legal Counsel's concern but submitted that the Blake case, cited above, supported revocation and that it was open to the Panel to decide if revocation under section 30(4)1 or 30(4)4 of the Act was appropriate.

College Counsel submitted the only mitigating factor was that the Member admitted to sending the emails. Aggravating factors included his failure to recognize the impact of the emails on his colleagues, the content of the communications, the repeated behaviour and the actual impact on staff.

PENALTY DECISION

On July 16, 2019, the Panel made the following order as to penalty:

1. The Member is directed to receive a written reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the "Register");

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the date of this Order, 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 ("TCLs") 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) prior to commencing a teaching position or any position for which a Certificate of Qualification and Registration is required (a "Teaching Position"), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries with colleagues, subject to the following conditions;

(i) the Member will provide to a course provider approved by the Registrar a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following review of the document noted at paragraph (i) above, the course provider 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;

(iii) the syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course outlined in 3(a) above, the Member shall provide to the Registrar a written report from the course provider:

(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.

4. The Registrar is further directed to impose the following TCLs 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:[XXX]

(a)

(b)

(c)

(i)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(d)

(e)

(i)

(ii)

(iii)

(iv)

(f)

(g)

(h)

(i)

(i)

(ii)

(iii)

(iv)

(v)

(j)

(k)

(l)

(i)

(ii)

(iii)

(iv)

(v)

(m)

(n)

(o)

(p)

(q) ; and

5. The full TCLs noted in paragraph 4 above will appear on the Register, on the Member's Certificate and on any Statement of Professional Standing issued by the College and may be provided to anyone who asks to see them as they form part of the Register. The information to be recorded on the website version of the Register with respect to the TCLs contained in paragraph 4 will be as follows:

"By order of the Discipline Committee, the Member's Certificate of Qualification and Registration is subject to terms, conditions or limitations set out in the Decision and Order of the Discipline Committee dated July 16, 2019."

REASONS FOR PENALTY

In arriving at its decision with respect to penalty, the Panel carefully considered the College's evidence and submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection.

The written 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.

The Panel finds that three months is an appropriate length of suspension based on the authorities cited by College Counsel, which provided a range of one to six months. While there is no evidence that the Member sent inappropriate emails or made inappropriate comments to students, his behaviour towards his colleagues was extremely disrespectful, formed part of a concerning pattern of conduct and demonstrated a significant lack of professional judgment.

The requirement to take a course on appropriate boundaries with colleagues is warranted as the Member repeatedly communicated with his colleagues in a highly inappropriate and unacceptable manner. While the Member was aggressive with Ms. Dahl, the Panel found there was insufficient evidence to require the Member to take a course in anger management as well.

The remainder of the TCLs are appropriate because the Member's misconduct raises concerns about his governability and his [XXX]. While Dr. Klassen was unable to make a [XXX], he was also unable to rule out the [XXX] should the Member resume teaching. He found the Member's behaviour sufficiently concerning to warrant further inquiry and recommended the Member receive a [XXXX]. The Member's colleagues understandably questioned his [XXX] after receiving his disturbing emails. The language and content of the emails is so highly inappropriate that the Panel also raised this concern but accepts Independent Legal Counsel's advice that this matter is properly before the Discipline Committee.

Collectively, the remaining TCLs require the Member to satisfy the Registrar that he is sufficiently [XXX] to teach and that any [XXX]. While these conditions may appear overly restrictive, they are necessary because of the Member's lack of insight into his behaviour and the consequences for his colleagues. Ms. Kemp testified that if the Member had returned to the School she would have quit her job rather than share her workplace with him. The Member has never provided any apology or explanation for his misconduct and refused to meet with the School's owner on the scheduled date. The Panel finds these TCLs are necessary to protect students and maintain the public's confidence in the College's ability to regulate the teaching profession. They also give the Member the opportunity to remediate his behaviour and continue or resume teaching.

The Panel declines to order any form of revocation at this time. The Panel is unable to accept College Counsel's proposal to make revocation automatic upon breach of any of the TCLs in light of the concerns identified by Independent Legal Counsel, which the Panel accepts, about procedural unfairness. Making an order that would require the Registrar to decide whether or not the Member breached a TCL and should, therefore, have his certificate revoked would improperly delegate to the Registrar authority that can only be exercised by the Discipline Committee after a hearing.

While the Panel has the power to order immediate revocation under section 30(4)1 or suspended revocation under section 30(4)4 of the Act, College Counsel conceded that revocation is likely outside the reasonable range of penalties and provided only one decision in support of revocation: Ontario College of Teachers v. Blake, 2018 ONOCT 57. Although the Member's conduct was egregious, it was not as egregious as Mr. Blake's, who vandalized school property and sent threatening and impersonating emails from both his own email account and his colleagues' email accounts. The Panel finds that the TCLs, which require the Member to satisfy the Registrar that he is [XXX] to teach, will provide the public protection warranted in this case as well as the opportunity for remediation.

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

COSTS SUBMISSIONS OF COLLEGE COUNSEL

College Counsel submitted that it would be appropriate to order costs in this proceeding and submitted that the appropriate quantum is $20,000. She calculated this amount by applying the Tariff A rate of $10,000 per hearing day for one and a half hearing days plus half a day for the April 25, 2019 motion under the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the "Rules").

College Counsel submitted that the relevant factors for consideration are described at p. 12 of Ontario College of Teachers v. Hall, 2019 ONOCT 20. She argued that, in determining costs, the Panel may consider the conduct of the Member during the disciplinary hearing and that he was uncooperative, unreasonable and rude. For example, he sent College Counsel an email on January 26, 2019 calling her "Sneaky Lawyer", an email on January 26, 2019 claiming "You can't seem to get your facts straight in writing; if you said something over the phone and then backtracked, I wouldn't be able to prove it", and a video clip on March 14, 2019 with the "duh" sound effect (Exhibits D, H and I to Ms. Lacroix's Affidavit). Furthermore, he brought a frivolous motion to dismiss the proceedings and then failed to argue its merits during the attendance.

COSTS DECISION

The Panel initially reserved its decision on costs pending the receipt of further materials from College Counsel in respect of the April 25, 2019 motion. College Counsel subsequently provided the Panel with written submissions arguing that costs of the April 25, 2019 motion fall under Rule 16.05(3) and ought to be fixed at $5,000 by reference to Tariff A. In the alternative, College Counsel provided a costs outline estimating the College's actual costs of the motion at $6,399.70 and requested the Panel fix the motion costs at $5,000 under section 30(5)4 of the Act. The Member did not provide any responding materials.

Costs Principles

The Panel recognizes that an award of costs is discretionary and compensatory in nature (to reimburse the College for the expense of disciplinary proceedings) rather than punitive.

Section 30(5)4 of the Act gives the Panel the authority to fix costs to be paid to the College where it finds a member guilty of professional misconduct. Rule 16.05(3) provides:

Where the request for costs includes the cost or expense to the College of conducting a day of hearing, no evidence of the cost or expense of a day of hearing is needed if the request is equal to or less than the amount set out in Tariff A. This sub-rule applies only to hearings before the Discipline Committee.

Tariff A is described in the Rules as "costs and expenses for the College to conduct a day of hearing" and specifies: "Fee of College counsel including for preparation, fee of independent legal counsel and fee of court reporter: $10,000". The term "hearing" is not defined in the Act or the Rules; however, the Rules define "proceeding" as "any step in the hearing process and includes a motion, a pre-hearing conference, the hearing itself and any post-hearing procedure including reprimands". The Rules define "motion" as "a request for a ruling or decision by the Committee² on a particular issue at any stage in the proceeding". The definition of "proceedings" describes a motion as a "step in the hearing process" rather than a "day of hearing". It is thus unclear to the Panel that the Tariff A rate necessarily applies to motion costs. However, it does apply to the 1.5 days of hearing, should the Panel find that an award of costs is warranted.

Hearing Costs

The Hall decision lists the following factors to be considered: apportioning costs, uncooperative and vexatious conduct, promotion of good conduct, success of the parties and the member's ability to pay. The Panel finds the Member was uncooperative with College Counsel and sent unhelpful responses to College Counsel's polite and professional correspondence. The Member was entitled to contest the allegations but his failure to participate in the disciplinary hearing and cooperate with College Counsel to shorten or reduce the complexity of the proceeding can be considered as relevant to a costs award in accordance with Hall. The College was largely successful on proving the allegations and achieving the requested penalty. There was no evidence before the Panel of the Member's ability or inability to pay a costs award. On the totality of the evidence, the Panel finds this is an appropriate case in which to order costs of the hearing to the College, particularly in light of the Member's uncooperative conduct, and orders costs in the amount of $15,000 in accordance with Tariff A.

Motion Costs

The costs of the April 25, 2019 motion are properly before this Panel as the panel hearing the motion (the "Motion Panel") directed in its decision (Exhibit M to Ms. Lacroix's affidavit, at p. 12): "the costs of this motion may be addressed at the conclusion of this proceeding if a finding of professional misconduct is made". The Motion Panel determined (at p. 9):

In his submissions, the Member largely failed to address the substantive issues presented in his motion. His submissions addressed irrelevant matters and mostly consisted of his opinion about the teaching profession, feminism and other issues that are not the subject of this prosecution.

At p. 11 of their decision, the Motion Panel stated "The Member's motion has no merit. The Committee denies it."

The Panel has the authority under section 30(5)4 of the Act to order the Member to pay costs of the April 25, 2019 motion. College Counsel submitted a costs outline estimating that the College's costs of the April 25, 2019 motion amounted to $6,399.70. Applying the Hall factors, the Panel finds that an award of costs in the amount of $5,000 is appropriate in light of the Member's refusal to address the substantive issues on his motion and his complete lack of success.

COSTS ORDER

Accordingly, the Panel makes the following order as to the costs of this proceeding:

1. The Member shall pay the College costs of the proceeding in the amount of $20,000 within six months of the date of this decision.

Date: August 15, 2019

Jonathan Rose

Chair, Discipline Panel

Marlène Marwah

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel

Footnotes

1. 1See Novick v. Ontario College of Teachers, 2016 ONSC 508, at para. 71.
2. 2"Committee", in turn, is defined in the Rules as "depending on the context, either the Discipline Committee or the Fitness to Practise Committee of the College, and includes a Panel of them or its Chair".