Ontario College of Teachers v. Duncker, 2020 ONOCT 137

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Duncker 2020 ONOCT 137

Date: 2020-02-11

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 Peter Duncker, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID PETER DUNCKER (REGISTRATION #423953)

PANEL: Tom Potter, Chair Ann Ciaschini, OCT Nicola Powadiuk, OCT

HEARD: February 7, 2020

Shane D’Souza, for the Ontario College of Teachers Jack Brown, for David Peter Duncker 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 February 7, 2020 at the Ontario College of Teachers (the “College”).

2David Peter Duncker (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.

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 September 7, 2017 (Exhibit 1) are as follows:

IT IS ALLEGED that David Peter Duncker 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 sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;¹

(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. 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:

1. David Peter Duncker 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 District School Board of Niagara (“the Board”) as a teacher at [XXX] School (“the School”) in [XXX], Ontario.

3. During the academic year 2014-2015, Student 1 was a female student at the School. Student 1 met the Member in the [XXX] which he supervised. On a regular basis, she would spend her lunch hour in the [XXX] room, along with other students and the Member. In the second semester of 2014-2015, Student 1 was in the Member’s Grade [XXX] [XXX] class.

4. Student 1 turned [XXX] years of age in December 2014. Student 1 did not return to the School after [XXX]. She did not [XXX] from the School. She [XXX] to [XXX] in [XXX].

5. During the 2014-2015 academic year, the Member engaged in an inappropriate personal relationship with Student 1 that breached appropriate professional boundaries.

6. In November 2014, the Member gave Student 1 a [XXX] as a gift.

7. In or around June 2015, the Member gave Student 1 [XXX] belonging to the School.

8. Between July 2015 and November 2015, the Member engaged in inappropriate electronic communications with Student 1. The communications took place on a daily basis and included text-messaging, Facebook communications, and communications via Skype. The Member and Student 1 also communicated through online gaming platforms such as [XXX]. The communications included:

(a) Discussing personal matters;

(b) Commenting to Student 1 that she had pretty eyes;

(c) When Student 1 stated “I really think u like me”, replying “Ya, it’s true”;

(d) Making plans with Student 1 to spend time alone together;

(e) Making plans for the Member to visit Student 1 in [XXX];

(f) Commenting to Student 1 “the boys at the very least should be flocking to you”;

(g) Discussing with Student 1 other students’ personal issues;

(h) Commenting to Student 1 “You’re so pretty!”;

(i) On or about October 23, 2015, discussing other students’ work and student evaluations with Student 1.

9. In or around the period May-July 2015, the Member engaged in inappropriate physical contact with Student 1 by hugging Student 1.

10. On or about July 24, 2015, the Member picked up Student 1 in his personal vehicle and they went out for coffee and shopping.

11. In or around July 2015, Student 1 needed money [XXX]. The Member gave Student 1 $60.00 in exchange for a [XXX].

12. On or about July 13, 2015, Student 1 informed the Member that her father was concerned with the Member’s communications with Student 1. The father of Student 1 contacted the Board to report the communications. The Member stated to Student 1 “don’t worry, we did nothing wrong” and continued to communicate with Student 1.

13. In or around November 2015, the Member gave Student 1 a [XXX] as a gift, which he sent to her by mail.

14. Following an investigation by the Board, on March 10, 2016 the Member received a letter of discipline and was suspended without pay for a period of twenty days. Attached hereto and marked as Exhibit “B” is a copy of the Board’s March 10, 2016 letter of discipline to the Member.

15. The Member continues to teach with the Board, at a different school.

16. The Member acknowledges that he did not follow the advice provided by the College in its professional advisory on the use of electronic communications and social media, released on February 23, 2011.

17. The Member acknowledges that he did not follow the Board’s policy and administrative procedure on the use of electronic social media, released in May 2011. Attached hereto and marked as Exhibits “C” and “D”, respectively, is a copy of the Board’s policy and a copy of the Board’s administrative procedure, dated May 2011.

GUILTY PLEA

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

19. 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(15), 1(18) and 1(19).

20. 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 the parties 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 with the advice of legal counsel.

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

D. DECISION

6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97 and/or engaged in sexual abuse of a student as defined in section 1 of the Act, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as the parties agreed that the facts outlined in the Agreed Statement of Facts and Guilty Plea do not amount to sexual abuse as defined in Section 1 of the Act. The Panel granted this request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on February 7, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 17 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 an inappropriate personal relationship with Student 1, which included sending her gifts, giving her [XXX] belonging to the School, picking her up in his car and going out for coffee and shopping, hugging her, offering her money in exchange for a [XXX]. The Member also engaged in regular, inappropriate electronic communications with Student 1, in which he discussed other students’ personal issues with her, made comments regarding her physical attributes, and made plans to spend time alone with her.

9The Panel finds that the Member failed to maintain the standards of the profession. The Panel agrees with the submission of College Counsel regarding the Member’s failure to adhere to the College’s published Professional Advisory entitled “Maintaining Professionalism – Use of Electronic Communication and Social Media”. Specifically, the Member used electronic communications to invite Student 1 to “meet privately or without a valid educational context” and sent “personal or social networking contact information” to “communicate for personal reasons”. The Member’s misconduct towards Student 1 took place outside of an educational context. There was no pedagogical merit to the Member’s electronic communications with Student 1. In addition, the ethical standard of “care” states that members of the teaching profession are to “express their commitment to students’ well-being and learning through positive influence”. Through his inappropriate communications with Student 1, the Member failed to abide by the above-noted professional advisory and to uphold the ethical standard of “care”.

10The Panel finds that the 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. The Member’s inappropriate actions towards Student 1 did not meet the exemplary moral behaviour which is expected of teachers under section 264(1) of the Education Act. By engaging in an inappropriate personal relationship with Student 1, the Member disregarded his professional obligations towards the student and he abused his position of trust and authority as a teacher.

11The Panel finds that the Member’s conduct was disgraceful, dishonourable and unprofessional. Despite having been informed by Student 1 that her father had expressed concerns regarding the Member’s communications with her, the Member continued to interact with Student 1 in person and through social media. The Member’s inappropriate personal relationship with Student 1 demonstrated a concerning lack of professional judgment and a clear breach of professional boundaries.

12Finally, the Panel finds that the Member’s above-mentioned conduct was unbecoming a member in that it undermined the reputation of the teaching profession, and the trust that the public places in members.

F. PENALTY DECISION

13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 7, 2020, 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 St. West, 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 two years commencing on the date of the 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 three months after 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 boundary violations, subject to the following conditions:

(i) the Member will provide to a course provider 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 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. 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 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.

G. REASONS FOR PENALTY DECISION

14The 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 the parties: Ontario College of Teachers v. Montgomery, 2018 ONOCT 4, Ontario College of Teachers v. Riley, 2019 ONOCT 61, Ontario College of Teachers v. MacDonald, 2019 ONOCT 104, and Ontario College of Teachers v. Cameron, 2019 ONOCT 87. The Panel found that the MacDonald and Cameron cases were the most useful in establishing that the proposed penalty fell within an acceptable range. The suspensions ordered in Montgomery (16 months) and Riley (six months) were considerably shorter than the two-year suspension proposed by the parties in the Member’s case and did little to help establish the appropriate range of penalty.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the repeated nature of the Member’s inappropriate interactions with Student 1, electronically and in person, and the fact that the conduct took place over an extended period of time. In addition, when Student 1 expressed her parent’s concerns to the Member, he responded “don’t worry, we did nothing wrong” and continued to communicate with Student 1 despite the parent’s concerns. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing involving witnesses who [XXX], and he has no prior disciplinary history at the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. This case involved the Member’s serious and repeated breaches of professional boundaries. The Member abused his position of trust and authority by engaging in an inappropriate personal relationship with a student. The Member’s professional misconduct included taking Student 1 to a coffee shop and picking her up in his personal vehicle, as well as several instances of inappropriate communications with her on social media and various online platforms. The Member also provided Student 1 with a number of gifts, including [XXX] belonging to the School and money. The Panel is also concerned that the Member commented about Student 1’s physical appearance, made plans to spend time alone with her, and made plans to visit her in [XXX]. This type of behaviour reflects poorly on the profession as a whole and clearly does not uphold the ethical standards expected of members. The Member demonstrated a profound lack of professional judgment by fostering an inappropriate personal relationship with a student. 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.

17The Panel accepts the parties’ joint submission that a two-year suspension is appropriate in this case. The Panel was initially concerned that the case law provided by the parties only established a range that was considerably lower than the penalty proposed (i.e. six months to 20 months). However, after seeking additional submissions on this point, College Counsel presented the Cameron decision in which revocation was ordered in similar circumstances. Cameron also involved inappropriate electronic communications between a member and a student, and serious boundary violations. The Panel accepts that Cameron was more serious than the Member’s case given that there was evidence of serious emotional harm to the student in that case, but that it establishes that a two-year suspension falls within a range of acceptable outcomes. The Member’s misconduct was serious and repeated, and it continued even after the Member learned that Student 1’s parents were concerned with his behaviour.

18Moreover, the Panel recognizes that the proposed penalty in this case was the product of a joint submission negotiated between adversarial parties who were both represented by legal counsel. Accepting the parties’ proposed penalty would not bring the administration of justice into disrepute, and therefore, the joint submission must be accepted. 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 and will be treated accordingly.

19The Panel finds that the course of instruction regarding boundary violations will assist in the rehabilitation of the Member. The Panel notes that the Member has already completed a similar course of instruction as mandated by the Board, but expects that the additional prescribed coursework will serve to remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students, both in and outside the classroom.

20The 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 at the request of College Counsel.