DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

DECISION, REASONS FOR DECISION AND ORDER

Citation: Ontario College of Teachers v MacDonald 2019 ONOCT 99

Date: 2019-10-24

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

John Barry MacDonald, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOHN BARRY MACDONALD (REGISTRATION #199758)

PANEL: Mary Ellen Gucciardi, OCT, Chair Shanlee Linton, OCT Jonathan Rose

HEARD: October 22, 2019

Ava Arbuck, for the Ontario College of Teachers

Jerry Raso, for John Barry MacDonald

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 22, 2019 at the Ontario College of Teachers (the “College”).

2John Barry MacDonald (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.

3Three Notices of Hearing dated February 7, 2018 (Exhibit 1), February 12, 2018 (Exhibit 2) and February 14, 2018 (Exhibit 3) 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, Exhibit 2 and Exhibit 3 was subsequently set for October 22, 2019. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in all three Notices of Hearing.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to subsection 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 February 7, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that John Barry MacDonald 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);¹

(c) he abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

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

(e) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;³

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

(g) 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);

(h) 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

(i) 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 February 12, 2018 (Exhibit 2) are as follows:

IT IS ALLEGED that John Barry MacDonald 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 thereunder, 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).

7The allegations against the Member in the third Notice of Hearing dated February 14, 2018 (Exhibit 3) are as follows:

IT IS ALLEGED that John Barry MacDonald 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 thereunder, 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).

C. STATEMENT OF UNCONTESTED FACTS

8College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 4), which provides the following:

1. John Barry MacDonald 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 Simcoe Muskoka Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

3. The Member began teaching for the Board on August 25, 1997.

Student 1:

4. At all material times, Student 1 was a female student at the School. The Member was her teacher during the 2013-2014 academic year, when Student 1 was in Grade [XXX].

5. During the 2011-2012 academic year when Student 1 was in Grade [XXX], her locker was next to the Member’s classroom. The Member used to talk to Student 1 when he saw her at her locker or in the hallways. Student 1 thought the Member was a friendly, funny and cool teacher who talked with everyone in the hallways.

6. Between 2011-2012 and 2014-2015, the Member made inappropriate comments of a personal nature to Student 1. For example, when passing Student 1 in the hallways at School or by her locker, the Member sometimes commented on her appearance, including her clothing, hair and skin, told her she has a nice voice, and teased her about boys. Sometimes his comments made Student 1 feel uncomfortable.

7. Sometimes the Member told Student 1 jokes that contained inappropriate themes and language, including foul language.

8. The Member shared personal information with Student 1, including about his friends and family.

9. On occasion when talking to Student 1, the Member referred to other students or colleagues. For example, on one occasion the Member told Student 1 that a particular student upset him, and on another occasion he used inappropriate language when he referred to a colleague in anger.

10. On occasion when he talked to Student 1 about other people, the Member used hand gestures to reference their physical attributes, which sometimes made Student 1 uncomfortable.

11. The Member gave Student 1 gifts at holiday time, including a [XXX]and a[XXX]. Student 1 felt obligated to get the Member a gift in return, although the Member never asked for one.

12. During the 2014-2015 academic year when Student 1 was in Grade [XXX], some students started a rumour suggesting that Student 1 may be involved in an intimate relationship with the Member. Although this rumour was not true, it upset Student 1. As a result, she attempted to avoid the Member for most of the year because of the rumour and because his conduct, in hindsight, was “unusual” and sometimes made her feel uncomfortable.

13. In early May 2015, while on a Grade [XXX] field trip in [XXX], Student 1 disclosed to another teacher the ongoing comments and conduct by the Member that began when she was in Grade [XXX] at the School, some of which she felt were inappropriate.

14. On or about May 10, 2015, Student 1 and her parents spoke with the Principal. Student 1 advised that although she initially welcomed the Member’s friendly conversation, she did not like the relationship that had developed between them over the years. She described feeling confused by the Member’s attempts to have personal and adult conversations with her, and she did not know how to react in the circumstances.

15. On May 11, 2015, the Principal assigned the Member to alternate duties with pay pending investigation, for the remainder of the school year. Attached hereto and marked as Exhibit “B” is a copy of the Principal’s Letter to the Member.

16. On May 12, 2015, Student 1 and her parents spoke with police. On or about June 5, 2015, police determined that the conduct at issue, “although it does outline inappropriate teacher behaviour”, did not warrant criminal charges against the Member.

17. Student 1’s parents advised the Principal that they had submitted an on-line complaint to the College regarding the Member, dated May 25, 2014.

Colleague A:

18. As a result of the administration’s investigation into Student 1’s allegations, on or about June 25, 2015, Colleague A, a female teacher at the School, reported that she had been the recipient of inappropriate comments and behaviour by the Member between 2010 and 2014. Colleague A and the Member had been colleagues at the School for over 20 years.

19. Colleague A felt uncomfortable when, after she and her then-husband separated, the Member repeatedly asked her how long since she “last had sex”. Initially Colleague A refused to respond. On one occasion in or around February 2010, the Member asked her this question in the presence of another colleague, and when she responded, “do the math”, the Member made a disparaging comment and laughed, embarrassing Colleague A. At the time, the Member was Colleague A’s Department Head.

20. When the Member was walking behind Colleague A in the hallway one day, he commented, “Don’t worry, a lot of guys like a little junk in the trunk”. Colleague A understood the Member’s comment to be a reference to her buttocks. As a result of his comment, Colleague A insisted the Member walk ahead of her.

21. During the 2014 staff Christmas party, the Member sent Colleague A a text about a female colleague’s chest: “Have you ever looked at (colleague)’s rack? She’s got massive knockers for a woman get [sic] size!!” The following day, the Member asked Colleague A whether he had “drunk-texted” her at the party. When Colleague A responded yes, the Member said, “well, what do you think? Do you think they’re bigger since she had kids?”

22. During the 2014-2015 school year, the Member made a number of disparaging remarks to Colleague A about another colleague. His comments, borne out of frustration, were never made directly to the colleague in question.

23. Colleague A never observed any concerning conduct by the Member in relation to students. However, over the years the Member made some inappropriate remarks to her in relation to female students, such as who he would date if he was a teenaged boy.

Colleague B:

24. Colleague B was a female student at the School from[XXX]. She returned to the School as a teacher in[XXX].

25. Colleague B had been the recipient of inappropriate comments and conduct by the Member when she was a high school student at the School, beginning when the Member taught her Grade [XXX]. During her high school years, the Member:

(a) discussed personal interests with her and referred to her as a “kindred spirit”;

(b) teased her about her high grades;

(c) talked to her about other students and colleagues;

(d) made reference to a particular actress’ breasts;

(e) told her the boys she dated were not “good enough” or not “right” for her;

(f) commented on her appearance, including her clothing, hair and skin.

26. When Colleague B was a Grade [XXX] student, she had a scheduling conflict. The Member offered to teach her [XXX] independently to accommodate her schedule. The Member sometimes “popped by” to drop off work at her house, with her parents’ approval. The Member continued to drop by her house when she was in Grade [XXX], and in [XXX].

27. Others at School noticed the attention the Member gave to Colleague B as a student. Students teased her that she received good marks only because of his attention. When Colleague B entered [XXX], she maintained a friendship with the Member, and sometimes dropped by the high school to assist the Member on various projects. On one occasion, in her presence, another teacher referred to her as the Member’s “concubine”.

28. When Colleague B returned to the School as a teacher in[XXX], the Member was the Department Chair. He often hugged her, and she felt she had to return his hug, given his position. The Member also often made comments referring to women’s breasts, including referencing them with hand gestures, which made Colleague B feel uncomfortable.

29. Colleague B was the Member’s [XXX] at the School in 2012. On one occasion, she and the Member had a dispute over an issue relating to the Member’s [XXX]. When Colleague B went to pull up information on the computer to show the Member, the Member backed her up against the computer, physically intimidating her in front of her class. When he later approached her to apologize, he attempted to hug her, making her feel uncomfortable. Attached hereto and marked as Exhibit “C” is a copy of the Member’s apology note to Colleague B.

30. In 2011, Colleague B taught Student 1. The Member pointed out Student 1 to Colleague B in the hallway, telling Colleague B that Student 1 was similar to her and reminded him of her.

31. On or about March 5, 2015, in the presence of another female colleague, the Member said to Colleague B, “[Colleague B], did anyone ever tell you in high school that you got the marks you got because of the size of your rack?” Colleague B was shocked and upset by the Member’s comment, and left the room.

32. Colleague B filed an informal complaint against the Member under the Board’s Workplace Harassment Procedure on or about March 10, 2015. The Member was surprised, however, he accepted that she no longer wanted to talk to him and suggested that he would stay away from her. Colleague B accepted this resolution. Shortly thereafter, the Member was in the hallway where Colleague B’s classroom was, seemingly without reason, causing Colleague B to walk around the School with a buddy thereafter so that she would not be alone if the Member approached her.

Board Investigation:

33. By letter dated August 31, 2015, the Superintendent advised the Member that the Board had determined that he did, “on multiple occasions, sexually harass female teachers” at the School, and his “comments and actions” were “both highly inappropriate and completely unacceptable, and in violation of the Occupational Health and Safety Act, the Board’s Code of Conduct, and the Board’s Workplace Harassment Policies and Procedures”. The Member was advised that “in no way will the Board tolerate [his] actions with regard to this matter”. The Member was suspended without pay for four days from September 21 to 24, 2015. In addition, the Member was transferred to a new school, effective September 3, 2015, and was required to complete sensitivity training within six months. Attached hereto and marked as Exhibit “D” is a copy of the Superintendent’s Letter to the Member dated August 31, 2015.

PLEA OF NO CONTEST

34. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

35. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(14), 1(15), 1(18), 1(19).

36. By this document the Member states that:

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

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

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

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

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

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

37. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

38. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

9With 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 the three Notices of Hearing so that this matter could proceed in a single hearing. The Panel granted this request.

10Counsel for the College further requested that the allegations of professional misconduct outlined in paragraphs (b), (c), and (e) of the Notice of Hearing dated February 7, 2018, namely that the Member contravened subsections 1(7), 1(7.1), and 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Panel granted these requests.

11Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on October 22, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

12The Member did not contest the facts and exhibits referred to in paragraphs 1-33 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in a pattern of inappropriate comments and behaviour towards Student 1, Colleague A, and Colleague B.

13The Member’s inappropriate comments towards Student 1 constitute psychological or emotional abuse. Among other things, the Member told her inappropriate jokes with foul language and inappropriate themes, he shared personal information with her, and gave her a gift. The Member’s conduct made her feel uncomfortable and confused. Through his conduct towards Student 1, the Member also failed to maintain the standards of the profession, which, among other things, provide that members are expected to demonstrate their commitment to students’ well-being and learning. The Member abused his position of trust and authority with respect to Student 1.

14Further, the Member contravened subsection 1(14) of Ontario Regulation 437/97 by failing to comply with section 32 of the by-laws, and he contravened section 264(1) of the Education Act by failing to act as an appropriate role model. The Member continually engaged in a pattern of behaviour that breached both teacher-student boundaries and teacher-colleague boundaries. The Member’s conduct demonstrated his continuous lack of professional judgment. His completely inappropriate conduct towards a student and two colleagues was disgraceful, dishonourable, unprofessional and unbecoming of a member.

F. PENALTY Decision

15The parties agreed to a Joint Submission on Penalty (Exhibit 5), which was presented to the Panel. In an oral decision rendered on October 22, 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 20 months, commencing on the 15th 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 120 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 professional boundaries and boundary violations with students and colleagues, subject to the following conditions;

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest 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 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 (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

16The 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 College Counsel: Ontario College of Teachers v. Montgomery, 2018 ONOCT 4, Ontario College of Teachers v. Fazl, 2019 ONOCT 2, and Ontario College of Teachers v. Béarez, 2019 ONOCT 17.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct, the repetitive nature of the Member’s misconduct, the fact that the Member’s misconduct occurred while he was in a position of power; and, the Member’s misconduct was directed at women and the women felt uncomfortable as a result of the Member’s behaviour. In terms of mitigating factors, the Member consented to combining the three Notices of Hearing so that the matter could proceed expeditiously in one hearing; and, he admitted his misconduct, saving the time and expense of a contested hearing and witnesses from having to testify. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s pattern of completely inappropriate conduct warrants a reprimand by his peers. Members are expected to serve as role models for students, which the Member failed to do by making inappropriate comments and engaging in inappropriate behaviour towards Student 1, Colleague A, and Colleague B. 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.

19The Panel finds that the course of instruction regarding professional boundaries and boundary violations will assist in the rehabilitation of the Member. 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 and colleagues.

20Given the nature and severity of the Member’s conduct, the Panel finds that a 20-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 confirms that a suspension is justified. The Member’s misconduct formed part of a concerning pattern of behaviour. He repeatedly sexually harassed female colleagues and he made a student feel uncomfortable by making inappropriate comments to her. The Member’s conduct demonstrates a serious lack of professional judgment. Teachers are expected to maintain appropriate boundaries with students and colleagues, to treat students and colleagues with respect and professionalism, and to model positive behaviour at all times. The Member repeatedly failed to meet these expectations. 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.

21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn.
2. 2Allegation withdrawn.
3. 3Allegation withdrawn.