DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Chan 2020 ONOCT 131

Date: 2020-01-28

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

Kevin Ho-Wai Chan, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KEVIN HO-WAI CHAN (REGISTRATION #573032)

PANEL: Nicola Powadiuk, OCT, Chair

Shanlee Linton, OCT

Marlène Marwah

HEARD: January 17, 2020

Jason Bennett, for the Ontario College of Teachers

No one appearing for Kevin Ho-Wai Chan

Renée Kopp, 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.

By order of Justice L. Pringle of the Ontario Court of Justice, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on January 17, 2020 at the Ontario College of Teachers (the “College”).

2Kevin Ho-Wai Chan (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted the Affidavit of Service of Charlene Hare (Exhibit 3) sworn on November 6, 2019, a Covering Letter of the Disclosure Brief (Exhibit 4) dated October 22, 2019, and the Affidavit of Tatiana Tkatch (Exhibit 5) sworn on January 16, 2020, to show that the Member had been served with the appropriate documents and informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought by the College.

4Based on Exhibits 3, 4, and 5, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and that he was aware of the time and date of the hearing and the penalty being sought by the College. The Member did not appear and the Panel heard this matter in his absence.

A. PUBLICATION ban

5The 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.

6Additionally, the Panel received a certified copy of the Court Information from the Member’s criminal proceeding before Justice L. Pringle (Exhibit 6 at Tab A). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

B. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated July 31, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Kevin Ho-Wai Chan is guilty of professional misconduct as defined in the Act in that:

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

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) he abused a student or students 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;

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

(f) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(g) he contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Kevin Ho-Wai Chan is a member of the Ontario College of Teachers.

2. On April 20, 2016, the Member’s membership status with the College was changed to “Suspended – Non-payment of fees.”

3. The Member obtained a Bachelor of Education degree from York University on June 29, 2009 and received a Certificate of Qualification and Registration from the College on March 17, 2010.

4. At all material times, the Member was employed as a tutor at the Don Mills, Ontario location of the [XXX]. (the “School”), a private school offering after-school and summer [XXX] classes at locations across Canada.

5. At all material times, Student 1 was a [XXX] -year-old female student of the School and was a student of the Member.

6. On November 24, 2015, the Member was charged with:

(a) one count of being a party to the sexual assault of Student 1 between June 1, 2014 and August 18, 2014, contrary to Section 272 of the Criminal Code (Canada); and

(b) one count of sexual interference with Student 1 between June 1, 2014 and August 18, 2014, contrary to Section 151 of the Criminal Code (Canada).

7. On March 10, 2016, the charge in paragraph 6(a) above was amended to one count of sexual assault of Student 1 between June 1, 2014 and August 18, 2014, contrary to Section 271 of the Criminal Code (Canada). The charge in paragraph 6(b) remained unchanged.

8. On August 28, 2017, the Member was found guilty of both charges (sexual assault and sexual interference), however the sexual assault conviction was stayed and, on November 21, 2018, the Member was sentenced to 90 days incarceration and three years of probation with respect to the sexual interference conviction. The Member was also made subject to a number of ancillary orders.

9. The Member did not appeal his conviction and/or sentence.

C. THE MEMBER’S PLEA

8As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

9College Counsel entered into evidence the Registered Member Information for Kevin Ho-Wai Chan (Exhibit 2), which indicates that the Member was a member of the College at the time of the alleged events. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Kevin Ho-Wai Chan (Exhibit 6), which contains the following documents:

1. Certified Copy of Court Information, sworn March 10, 2016;

2. Certified Copy of the Reasons for Judgment of Justice L. Pringle of the Ontario Court of Justice, dated August 28, 2017;

3. Certified Copy of the Reasons for Sentence of Justice L. Pringle of the Ontario Court of Justice, dated November 9, 2018;

4. Certified Copy of the Transcript of Sentencing before Justice L. Pringle of the Ontario Court of Justice, dated November 21, 2018; and

5. Certified Copy of the Probation Order made against the Member by Justice L. Pringle of the Ontario Court of Justice, dated November 21, 2018.

10The evidence presented in Exhibit 6 establishes that on August 28, 2017 the Member was found guilty of one count of sexual assault and one count of sexual interference in relation to Student 1 contrary to sections 271 and 151 of the Criminal Code. On November 21, 2018, the Court stayed the sexual assault conviction and the Member was sentenced to 90 days incarceration to be followed by three years of probation with respect to the conviction for sexual interference. The Member was also made subject to a number of ancillary orders. The Member did not appeal his conviction or sentence.

E. SUBMISSIONS ON FINDING

11College Counsel submitted that the Member’s conduct, as detailed in the record of the criminal proceedings (Exhibit 6) and the resultant criminal convictions provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing.

12College Counsel submitted that, by sexually assaulting Student 1, the conduct of the Member was so notorious that it clearly failed to meet the standards of the profession contrary to Ontario Regulation 437/97 subsection 1(5). As such, the College was not required to provide expert evidence regarding the standard pursuant to Novick v. Ontario College of Teachers, 2016 ONSC 508.

F. DECISION ON FINDING

13Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on January 17, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Panel also found that the Member engaged in sexual abuse of a student as defined in section 1 of the Act.

G. REASONS FOR DECISION

(1) Factual Findings

14In accordance with Section 22.1 of the Evidence Act (Ontario), R.S.O. 1990, c. E.23 and Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Panel accepts the certified copy of the Court Information as proof that the Member committed the criminal offences outlined therein. The Member was found guilty before the Ontario Court of Justice, no appeal has been taken, and the time for an appeal has expired.

15Pursuant to Rule 13.04 of the Rules, the Panel admits as ancillary to the certified copy of the Court Information the findings of fact involving the Member contained in the Reasons for Judgment and Reasons for Sentence of Justice L. Pringle of the Ontario Court of Justice.

16Based on the evidence contained within the Brief of Court Documents, the College has proven on a balance of probabilities that the Member engaged in sexual touching of Student 1 between June 1, 2014 and August 18, 2014. In the spring of 2014, the Member initiated a close personal relationship with his student, Student 1, who was [XXX] years old. While the relationship began with good intentions, it soon became inappropriate. The Member began communicating with Student 1 by phone and they began seeing each other outside of class. Soon after, the Member and Student 1 were texting daily and meeting weekly. Eventually, they began meeting at the Member’s apartment. During the relationship, among other inappropriate conduct the Member:

• discussed personal and intimate topics with Student 1, such as the student’s sexuality and appearance;

• proposed double dating with Student 1;

• gave Student 1 rides in his car;

• provided Student 1 with a key to his apartment;

• communicated with Student 1 through FaceTime at night when the student was in bed;

• wrote lengthy emails and letters to Student 1 that included romantic song lyrics about falling in love; and

• frequently kissed Student 1 on the cheeks and forehead, hugged Student 1, and held Student 1’s hand.

Justice Pringle found that the nature of the Member’s messages to Student 1 was intense and obsessive. The kissing, hugging, and hand-holding between Student 1 and the Member were of a sexual nature, violated Student 1’s sexual integrity, and the Member was convicted of sexual interference as a result.

17The evidence presented in Exhibit 6 includes details from a Victim Impact Statement written by Student 1, in which she describes the effect that the Member’s conduct had on her emotional well-being. Student 1 has experienced distressing and negative memories of the Member’s conduct, she has had a hard time coping with her experience with the Member, she has been in and out of trauma assessment and treatment, and as a result she feels that she did not experience high school as a typical teenager.

(2) Legal Conclusions

18The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97. The Member also engaged in sexual abuse of a student as defined in section 1 of the Act.

19The evidence demonstrates that the Member had an inappropriate relationship with Student 1 which constitutes physical, emotional and sexual abuse of a student contrary to subsections 1(7.1), 1(7.2), and 1(7.3) of Ontario Regulation 437/97. While Student 1 was [XXX] years old, the Member spent time alone with her, gave her rides in his car, spoke with her about personal and intimate issues, frequently held her hand, hugged her, and kissed her on the cheek in a way that violated her sexual integrity. The definition of sexual abuse at section 1 of the Act includes touching, behaviour or remarks of a sexual nature by a member towards a student. The Member’s conduct in this case meets that definition. Moreover, Student 1 was emotionally affected by the relationship and received treatment for the trauma that she experienced as a result of the Member’s actions.

20Engaging in this kind of inappropriate sexual relationship with a student is a clear breach of the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. The Panel accepts College Counsel’s submission that the Member’s behaviour is so notorious that expert evidence of the standard is not required.

21The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Members hold a unique position of trust and authority. They are expected to demonstrate their commitment to students’ emotional and physical well-being. The Member’s conduct was entirely at odds with his obligations as a member of the profession.

22The Member’s criminal conviction for sexual interference demonstrates that the Member contravened a law relevant to his suitability to hold a certificate of qualification and registration, and which has caused a student under the Member’s supervision to be put at risk contrary to subsections 1(16) and 1(17) of Ontario Regulation 437/97.

23The Member’s misconduct is disgraceful, dishonourable, unprofessional and is unbecoming a member, contrary to subsections 1(18) and 1(19) of Ontario Regulation 437/97. Members are expected to create a safe learning environment for students, and not to exploit their position for their own sexual gratification. The public’s trust in the teaching profession is eroded when members abuse their position of trust and authority to sexually and emotionally abuse their students.

H. SUBMISSIONS ON PENALTY

24Counsel for the College submitted that since this is a case of sexual abuse, a reprimand and revocation of the Member’s certificate of qualification and registration are mandatory according to section 30.2 of the Act. College Counsel further submitted that, given the Member’s absence from the hearing, it is reasonable to order that the reprimand be delivered in writing.

25College Counsel submitted that no other sanctions are necessary in this case and referred the Panel to two cases involving similar misconduct: Ontario College of Teachers v. Norton, 2019 ONOCT 51 and Ontario College of Teachers v. Iason, 2017 ONOCT 89. College Counsel submitted that these cases were similar to the Member’s case and that the same penalty was ordered in each instance, which indicates that the penalty sought in this matter is within a reasonable range.

I. PENALTY DECISION

26On January 17, 2020 the Panel made the following order as to penalty:

1. The Member is directed to receive a reprimand, pursuant to section 30.2(1)(a) of the Act, which shall be in writing; and

2. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member, pursuant to section 30.2(1)(c) of the Act.

J. REASONS FOR PENALTY

27The Member’s professional misconduct included sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and denounces the Member’s misconduct in the strongest terms.

28The Panel recognizes that, pursuant to subsection 30.2(1) of the Act, it may also order costs or a fine under subsection 30(5) of the Act. The Panel, however, finds it reasonable to limit the penalty in this case to the statutory minimum given that the College did not seek costs or a fine against the Member. In the absence of clear reasons as to why costs or a fine should be ordered, the Panel is reluctant to go beyond the penalty sought by the College.

29The penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: January 28, 2020

Nicola Powadiuk, OCT Chair, Discipline Panel

Shanlee Linton, OCT Member, Discipline Panel

Marlène Marwah Member, Discipline Panel