DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Carle 2020 ONOCT 135

Date: 2020-02-18

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

David John Carle, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID JOHN CARLE (REGISTRATION #278360)

PANEL: Mary Ellen Gucciardi, OCT, Chair

Sara Nouini, OCT

Tom Potter

HEARD: February 10, 2020

Charlotte-Anne Malischewski and Noam Uri, for the Ontario College of Teachers

Jerry Raso, for David John Carle

Erica Richler, 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 February 10, 2020 at the Ontario College of Teachers (the “College”).

2David John Carle (the “Member”) did not attend the hearing but had legal representation, who attended on his behalf. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

3Two Notices of Hearing dated February 8, 2019 (Exhibit 1) and February 5, 2019 (Exhibit 2) were served on the Member, specifying the allegations and requesting his presence on a date to be determined for the hearing. The hearing with respect to the allegations set out in Exhibit 1 and Exhibit 2 was subsequently set for February 10, 2020. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to 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 8, 2019 (Exhibit 1) are as follows:

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

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

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

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

(f) 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);

(g) 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);

(h) 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 5, 2019 (Exhibit 2) are as follows:

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

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

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

(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 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);

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

C. AGREED STATEMENT OF FACTS

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

1. At all material times, David John Carle was a member of the Ontario College of Teachers. The Member resigned from the College effective July 25, 2019. Pursuant to section 14, subsection 5 of the Ontario College of Teachers Act, 1996, the Member continues to be subject to the jurisdiction of the College for professional misconduct which occurred during the time that he held a Certificate of Qualification and Registration. 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 Catholic District School Board of Eastern Ontario (the “Board”) as a teacher at [XXX] School (the “School”), in [XXX]e, Ontario.

3. At all material times during the 2015-2016 and 2017-2018 academic years, the Member taught at the School.

2015-2016

4. During the 2015-2016 academic year, Student 1 was a female Grade 2 Student in the Member’s class.

5. Student 1 had been diagnosed with an [XXX]. In order to ensure she had the correct support in the classroom her parents made the Member aware of the diagnosis. Student 1’s parents raised concerns with the Member that his teaching style was clashing with Student 1’s [XXX], to which the Member responded, “I have been a teacher for 18 years. I never believed in clashing personalities and I won’t start now.”

6. During the 2015-2016 academic year the Member yelled at the students in his class, including at Student 1.

7. The Member purposefully mispronounced Student 1’s first name, so that the last syllable was pronounced as the word [XXX]. This upset Student 1. Despite Student 1 repeatedly asking the Member to stop mispronouncing her name, the Member continued to do so. Only after Student 1’s mother contacted School administration did the Member pronounce Student 1’s name correctly.

8. One day Student 1 asked the Member if he could help her open her apple sauce container. The Member replied, “Yes but it will cost you,” and without waiting for an answer, he took a handful of Student 1’s popcorn and ate it. One of Student 1’s [XXX] was food related. Student 1 felt disgusted when the Member’s hand touched her food.

9. The Member did not take Student 1’s concerns seriously, and made her feel dismissed and unimportant.

10. Towards the end of the 2015-2016 academic year, Student 1 missed an [XXX], due to other obligations, and was sad when the other team members returned with lollipops. Student 1 complained and her team members told her she could go into the other classroom to get a lollipop. Student 1 subsequently decided that she did not want the lollipop after all. The Member tried to talk Student 1 into going to get the lollipop. Student 1 repeatedly told the Member she did not want it. The Member then held Student 1 by her arm and tried to pull her out of the classroom to get the lollipop. Student 1 became very upset. Student 1 pulled free of the Member’s grasp and shouted at the Member that he should never touch her again.

11. On one occasion, the Member played an inappropriate television show during lunchtime where animated women jiggled their breasts. Another teacher saw this, entered the classroom and turned off the television show.

2017-2018

12. During the 2017-2018 academic year, Student 2 was a female Grade [XXX] student in the Member’s religious studies class.

13. During the 2017-2018 academic year, Student 3 was a male Grade [XXX] student in the Member’s [XXX] class. Student 3 had [XXX] and a [XXX]. The Member was aware of Student 3’s [XXX].

14. The Member told students in his class about his personal life. The Member told Student 2, “My wife was really nice to me last night and made me dinner, can you be like my wife?”

15. On or about November 16, 2017, the Member told Student 2 that her drawings were not very good and that a Grade [XXX] student could do better.

16. On one occasion the Member made fun of the way Student 3 spoke in front of the whole class. He told Student 3 that he spoke “funny.”

17. On November 21, 2017, the Member told students in his [XXX] class that his “heart hurt” and that some students had “broken his trust” because their families had complained about him to the Principal and the Board. The Member told the students that parents should be contacting him if they had a problem with him and to not write letters to the Board. The Member also told students at the School that “the children were lying about him and that they shouldn’t be telling their parents anything because it is none of their business.” The Member went on to say “Good luck trying to get a good mark”, in his class. Attached hereto and marked as Exhibit “B” are various emails sent from parents at the School to the principal.

18. On or about November 21, 2017, the Board commenced an investigation of the Member as a result of the above noted allegations. Attached hereto and marked as Exhibit “C” is a copy of the Principal’s investigation notes, the Vice-Principal’s investigation notes, and the Superintendent of Education’s investigation notes.

Family and Children Services Investigation

19. On November 30, 2017, the Member was placed on leave from the School, with pay pending the outcome of a Family and Children Services (“FCS”) investigation into the allegations that the Member physically and emotionally abused students at the School.

20. On May 18, 2018, FCS completed its investigation into the allegations made against the Member. The report notes that three separate parents contacted FCS to express concerns around the Member’s unfair treatment of children with special needs, including children with [XXX] and [XXX]. The concern of risk of physical harm by a community caregiver was verified based on the interview with Student 1, who described the Member pulling her the arm, which she stated had caused her physical discomfort and left a small bruise. FCS was not able to confirm that a bruise did in fact result from the interaction, but found Student 1’s statement was credible and supported that the incident did take place and caused her discomfort. Attached hereto and marked as Exhibit “D” is a copy of the FCS report dated May 18, 2018.

21. On May 22, 2018, FCS provided a further report after receiving the Member’s response to the allegations. In respect of the allegations of physical abuse, FCS noted that while the Member had made physical contact with Student 1, this did not amount to physical abuse as set out in the Eligibility Spectrum Guidelines. The FCS also concluded that the allegations of verbal and emotional abuse against the Member had not been substantiated. Attached hereto and marked as Exhibit “E” is a copy of the FCS report dated May 22, 2018.

Board Discipline

22. On August 30, 2018, the Board issued a letter of expectations to the Member. Attached hereto and marked as Exhibit “F” is a copy of the Letter of Expectations dated August 30, 2018.

23. On July 4, 2019, the Member resigned from the Board. The Member resigned from the Ontario College of Teachers effective July 25, 2019.

GUILTY PLEA

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

25. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18), and 1(19).

26. By this document the Member states that:

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

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

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

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

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

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

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

D. DECISION

8With the parties’ consent, and in accordance with section 9.1 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, the Panel combined the two Notices of Hearing so that this matter could proceed in a single hearing.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on February 10, 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(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 23 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 was repeatedly insensitive to students’ special needs and exceptionalities.

11The Member failed to maintain the standards of the profession. The standard of “care” as articulated in the Ethical Standards for the Teaching Profession includes compassion, acceptance, interest and insight for developing students’ potential. Members are expected to express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice. By dismissing Student 1’s [XXX] and by making fun of the way that Student 3 spoke, the Member did not exhibit empathy or compassion. The Member’s behaviour in this case was contrary to this standard.

12The Member verbally, physically, and emotionally abused Student 1 contrary to subsections 1(7), 1(7.1), and 1(7.2) of Ontario Regulation 437/97. Among other things, the Member yelled at Student 1, grabbed her by the arm, and tried to pull her out of the classroom. The Member also deliberately mispronounced Student 1’s name despite repeatedly being asked to stop by the student. The Member’s behaviour triggered Student 1’s [XXX] by touching her food and made her feel dismissed and unimportant. The Member also emotionally abused Student 3 by publicly ridiculing the way that he spoke.

13The Member failed to comply with the Act, regulations, or by-laws. The Admitted Facts demonstrate that the Member’s conduct is contrary to subsection 1(14) of Ontario Regulation 437/97. By his behaviour, the Member failed to meet the expectation of “trust” as articulated in the Ethical Standards for the Teaching Profession under section 32 of the College’s by-laws. This standard requires that members embody fairness, openness and honesty. By asking his students not to tell their parents about his behaviour and by suggesting that students had “broken his trust” by making a complaint to the Board, the Member exhibited a complete disregard for his obligation to be open and honest in his professional relationships with students, parents, and guardians.

14The Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. Among other things, teachers are required to encourage pupils in the pursuit of learning. The Panel finds that by making fun of Student 3’s exceptionality in front of the class the Member undermined the learning of all students in his class, which was in direct opposition to the Member’s duties.

15The Member’s conduct towards his students was disgraceful, dishonourable, or unprofessional. Members are expected to act in a professional manner, to exercise good judgment and to maintain appropriate boundaries when dealing with students. The Member failed to act in a professional manner by telling students about his personal life. The Member’s comment to Student 2 – “My wife was really nice to me last night and made me dinner, can you be like my wife?” – is particularly demonstrative of the Member’s unprofessional behaviour.

16Similarly, the Member’s conduct was unbecoming a member. Members are expected to communicate effectively with parents, and not to attempt to stifle open communication between students and their parents. The Member’s conduct harmed the reputation of the teaching profession and the trust that the public, and particularly students’ parents, place in members.

F. PENALTY DECISION

17The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. The joint submission was silent with respect to the form of the reprimand. Member’s Counsel requested that the Member receive his reprimand in writing. The College did not oppose this request. The Panel granted the request. In an oral decision rendered on February 10, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

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 15^th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;

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) 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 classroom management with an emphasis on students with special needs, subject to the following conditions;

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 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

18The 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. Manga, 2017 ONOCT 48, Ontario College of Teachers v. Gulamhusein, 2019 ONOCT 101, and Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28.

19The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the numerous instances of the misconduct, the fact that one of the students was very young and vulnerable, the fact that two of the students had exceptionalities that were known to the Member, and the fact that the Member’s conduct led to significant emotional harm for Student 1. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing and preventing vulnerable young students from having to testify. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

20The Panel finds that the Member’s conduct warrants a reprimand by his peers. Members are expected to be sensitive to the special needs and exceptionalities of their students, which the Member failed to do by his conduct. 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. With respect to the form of the reprimand, Member’s Counsel requested that it be delivered in writing and the College did not oppose this request. Member’s Counsel submitted that a written reprimand is appropriate as the Member has voluntarily resigned from the teaching profession. Further, the Member is not in a position to take time off from his new job to travel to Toronto to receive a reprimand in person. The Panel granted this request for the reasons submitted by Member’s Counsel.

21Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. The cases submitted by College Counsel confirm that a suspension is justified. In particular, the misconduct represented in Ontario College of Teachers v. Gulamhusein is similar to this case and should attract a similar penalty. In that case, there were two instances of verbal and physical abuse, which resulted in a three-month suspension. 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.

22The course of instruction regarding classroom management with an emphasis on students with special needs is intended to 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, including those with special needs or exceptionalities.

23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.