DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Shackleton 2020 ONOCT 122
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
Thomas Albert Shackleton, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
THOMAS ALBERT SHACKLETON (REGISTRATION #180228)
PANEL: Nicola Powadiuk, OCT, Chair Benoît Dussault, OCT Tom Potter
HEARD: December 9, 2019
Jason Bennett, for the Ontario College of Teachers No one appearing for Thomas Albert Shackleton 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.
1This matter was heard before a panel of the Discipline Committee (the “Panel”) on December 9, 2019 at the Ontario College of Teachers (the “College”).
2Thomas Albert Shackleton (the “Member”) did not attend the hearing and did not have 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.
A. PUBLICATION ban
3The 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
4The allegations against the Member in the Notice of Hearing dated November 18, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Thomas Albert Shackleton is guilty of professional misconduct as defined in the Act in that he:
(a) failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) 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) 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);1
(e) engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. AGREED STATEMENT OF FACTS
5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Thomas Albert Shackleton, OCT is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Member’s Registered Member Information summary from the College’s public register.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Toronto, Ontario.
During the 2016-2017 academic year, the Member taught Grade 11 and Grade 12 chemistry at the School.
During the 2016-2017 academic year, the Member made comments to or in relation to another teacher, [XXX]., including words to the effect of:
(a) on or about September 12, 2016, “You should pay half price,” in relation to the daycare costs for [XXX];
(b) on or about November 22, 2016, said that [XXX]. wore a low-cut shirt to pass her Teacher Performance Appraisal;
(c) on or about February 13, 2017, called [XXX]., “[XXX] you [XXX] person”;
(d) in or about the week of February 21, 2017, when another teacher asked [XXX]. about the number of USB sticks that she and a student teacher had, responded, “One for files, one for kiddie porn”;
(e) on or about March 28, 2017, repeatedly called [XXX]. “sweetheart”;
(f) on or about April 18, 2017, told [XXX]. that he would pick her up and throw her to get access to the photocopier; and
(g) called [XXX]. a XXX[.
On or about January 24, 2017, the Member held his fist in front of [XXX] face in a manner that suggested that the Member might punch her and said, “I can be mad at you,” or words to that effect.
Also during the 2016-2017 academic year, the Member made comments to colleagues, including words to the effect of:
(a) on or about September 21, 2016, said that Individual Education Plans were “bullshit”;
(b) in or about November and December 2016, said in relation to a school caretaker with a physical disability:
(i) “set a leg-hold trap for him”; and
(ii) “if he stole something, well, he wouldn’t get very far”;
(c) when speaking about students said, “if only I had my gun” and/or “that is when you grab your gun”;
(d) on or about December 22, 2016, said that he would “gas” his students rather than take them to a talent show assembly and/or gave a detailed description of how he would use gas chambers on students;
(e) referred to students as “retards”, a “bunch of idiots” and/or “pansies” on more than one occasion;
(f) said to a student teacher with an Asian background who was eating, “aren’t you going to eat that with chopsticks?”;
(g) referred to the curriculum leader of mathematics as a “fucking asshole”;
(h) in or about the week of February 21, 2017, told a female student teacher;
(i) not to watch “too much porn”; and
(ii) to “make sure there are some women in [the porn]”; and
(i) on or about May 23, 2017, called the School vice-principal a “dumb bitch”
- Also during the 2016-2017 academic year, the Member made comments to students, including words to the effect of:
(a) on or about September 13, 2016, used the word “retards” to describe students in front of other students;
(b) on or about February 21, 2017, told two female students that he should beat one of them for not having her work done; and
(c) in or about March 2017, referred to a female student as “some bitch”.
In or about late September 2016, the Member wrote acronyms on the board in class including “STFU” [shut the fuck up], “GTFO” [get the fuck out] and/or “FOAD” [fuck off and die].
On more than one occasion during the 2016-2017 academic year, the Member threw chalk at students.
On September 13, 2017, the Board (a) suspended the Member for four days without pay; (b) directed the Member to provide evidence by November 6, 2017 that the Member had addressed his “demonstrated professional development needs with respect to the cultivation and maintenance of effective and appropriate workplace relationships”; and (c) administratively transferred the Member to another school within the Board. Attached hereto and marked as Appendix “B” is a copy of the Board’s letter of discipline to the Member dated September 13, 2017.
The Member grieved the Board’s disciplinary measures and, on October 26, 2017, the Board reduced the Member’s unpaid suspension to three days. In addition, the Board agreed to remove the September 13, 2017 letter of discipline from the Member’s personnel file after four years, provided there are no further incidents requiring disciplinary action. Attached hereto and marked as Appendix “C” is a copy of the Board’s October 26, 2017 letter.
The Member retired from the Board in March 2019 and is not currently working in a position that requires a Certificate of Qualification and Registration.
If the Member were to testify at the hearing of this matter, he would say that he does not recall most of the incidents that led to his suspension in September 2017, but trusts that the witness accounts are accurate and does not dispute them. He would also apologize for his sometimes politically incorrect sense of humour and for losing his temper on several occasions. The Member would also testify that he was not trying to belittle or exert power over anyone, but he regrets the negative impact his behaviour had on others and is remorseful.
GUILTY PLEA
By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1 to 13 above (the “Admitted Facts”).
The Member acknowledges that the conduct described in paragraphs 4-9 of the Admitted Facts constitutes breaches of the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession, copies of which are attached as Appendix “D”.
The Member also acknowledges that the conduct described in paragraphs 4-9 of the Admitted Facts constitutes conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of subsections 1(5), 1(7), 1(15), 1(18) [unprofessional] and 1(19) of Ontario Regulation 437/97 made under section 40(1) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12.
By this document the Member states that he:
(a) understands fully the nature of the allegations against him;
(b) understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts, including the Appendices, being presented to the Discipline Committee;
(c) understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) 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) understands that any agreement between him and counsel for the College with respect to the penalty does not bind the Discipline Committee; and
(f) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained the advice of legal counsel.
- In light of the Admitted Facts and circumstances, and the plea of guilt, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct
D. DECISION
6With 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). College Counsel stated that the Member’s conduct was more accurately characterized as “unprofessional” only and falls short of conduct that is “disgraceful” or “dishonourable”. The Panel granted this request, despite its concerns that there was evidence to make a finding of “disgraceful” and “dishonourable” within the Agreed Statement of Facts and Guilty Plea. However, the Panel was mindful that the agreement was predicated on the withdrawal of these portions of subsection 1(18). If the Panel refused to grant the withdrawal, there was a risk that the agreement would fall apart. The Panel also noted that a finding would still be made under subsection 1(18) and that the substantive concerns would also be addressed by making findings in the remaining allegations. Therefore, College Counsel’s request was reluctantly granted.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on December 9, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97 subsections 1(5), 1(7), 1(15), 1(18) (unprofessional) and 1(19).
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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 the Member engaged in a pattern of inappropriate and unprofessional behaviour towards his students and colleagues.
9Through his inappropriate comments directed at students, the Member failed to maintain the ethical standards of the profession, specifically those of care, respect, trust, and integrity which, among other things, provide that members are expected to demonstrate their commitment to “students’ well-being and learning through positive influence”. The Member failed to meet this expectation when, among other things, he: used the word “retards” to describe students in front of other students; told two female students he should beat one of them for not having her work done; referred to one female student as “some bitch”; wrote acronyms on the board in class including “STFU” [shut the fuck up], “GTFO” [get the fuck out], or “FOAD” [fuck off and die]. These comments are verbally abusive.
10The Member’s misconduct demonstrates that he contravened subsection 264(1) of the Education Act by repeatedly failing to act as an appropriate role model. Members of the profession are expected to be responsible adults, model good values and behaviour, and play a supportive role for students. The Member failed to meet these expectations when he failed to exercise professional judgment in his interactions with both colleagues and students. Among other things, he: called one colleague a [XXX] and a “[XXX] person”; told other colleagues that Individual Education Plans were “bullshit”; referred to the curriculum leader of mathematics as a “fucking asshole”; referred to students as “retards”, a “bunch of idiots”, or “pansies”; called the vice-principal a “dumb bitch”; asked a student teacher with an Asian background “aren’t you going to eat that with chopsticks?”; and, told a female student teacher not to watch “too much porn” and to “make sure there are some women in [the porn]”. The Member’s multiple instances of inappropriate behaviour directed at colleagues and students represents conduct that was unprofessional and unbecoming of a member.
F. PENALTY DECISION
11The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. The Panel accepts the Joint Submission on Penalty and makes the following order:
The Member is directed to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario prior to the Member commencing or returning to any position requiring a Certificate of Qualification and Registration, and the fact of the reprimand is to be recorded on the public register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions and limitations is to be recorded on the Register until such time as they are fulfilled:
(a) prior to commencing or returning to any position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at his own expense, a course of instruction covering professional ethics and appropriate communications with students. The course shall be pre-approved by the Registrar and be 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, Reasons for Decision and Order of the Discipline Committee; and
(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; and
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course practitioner 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
12The Panel reluctantly 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. Were it not for the high test as described in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the Panel would have considered rejecting the proposed penalty. The Panel believes that cases such as this one, involving repeated vulgar, demeaning and racist comments warrant the imposition of a suspension. However, the Panel reluctantly accepts, based on the following prior Discipline Committee cases presented, that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes: Ontario College of Teachers v. Gordon, 2015 ONOCT 31, Ontario College of Teachers v. Jones, 2015 ONOCT 42, and Ontario College of Teachers v. Bielby, 2018 ONOCT 38. If the Panel had greater discretion in this matter, it would have likely imposed a more severe penalty, including a suspension.
13The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the multiple instances of inappropriate conduct over the 2016-2017 school year, and the offensive nature of the Member’s comments directed at both students and colleagues. In terms of mitigating factors, the Member: admitted his misconduct, saving the time and expense of a contested hearing; took responsibility for his actions and expressed remorse; has already been disciplined by his Board for his misconduct; had a successful teaching career for 25 years with no prior incidents with his Board; and, has not been the subject of College discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is not so unreasonable as to bring the administration of justice into disrepute or be otherwise contrary to the public interest.
14The Panel finds that the Member’s repeated instances of inappropriate and unprofessional behaviour directed at colleagues and students, despite prior discipline from his Board, warrants a reprimand by his peers. Members are expected to serve as role models for students, which, among other things, the Member failed to do by making multiple discriminatory, inappropriate and unprofessional comments. By doing so, the Member failed to promote a safe and supportive learning environment for the students in his class. Members of the teaching profession are expected to maintain professional boundaries not only with students but also with colleagues, and to behave as appropriate role models. The Member failed to meet these expectations when he made inappropriate, unprofessional and disparaging comments to his colleagues. 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.
15The Panel finds that the course of instruction regarding professional ethics and appropriate communications with students 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.
16While the misconduct in this case is a clear and serious breach of the professional and ethical standards of the profession, the penalty agreed to by the parties is not so far beyond the bounds of what is reasonable such that it would bring the administration of the discipline process into disrepute or would otherwise be contrary to the public interest. Therefore, the Panel accepts the penalty as proposed by the parties and finds it appropriate for the reasons outlined above.
Date: January 2, 2020
Nicola Powadiuk, OCT Chair, Discipline Panel
Benoît Dussault, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel