Ontario College of Teachers v. Gibb, 2020 ONOCT 142

Discipline Committee of the Ontario College of Teachers

Ontario College of Teachers v Gibb 2020 ONOCT 142

Date: 2020-03-04

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

Neil Gibb, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NEIL GIBB (REGISTRATION #244049)

PANEL: Mary Ellen Gucciardi, OCT, Chair Godwin Ifedi Sara Nouini, OCT

HEARD: February 26, 2020

Ava Arbuck and Steven Chadwick, for the Ontario College of Teachers Jerry Raso, for Neil Gibb 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on February 26, 2020 at the Ontario College of Teachers (the “College”).

2Neil Gibb (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 October 18, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Neil Gibb 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);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);²

(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); and

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. At all material times, the Member, Neil Gibb, was 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 respecting the Member.

2. At all material times, the Member was employed by the York Catholic District School Board (the “Board”). He began working for the Board in September 1992.

3. At all material times during the 2013-2014 school year, the Member taught [XXX]at [XXX]School (the “School”) in Richmond Hill, Ontario.

4. In and around the spring of the 2013-2014 school year, the Member brought donuts to share with his Grade [XXX] class. As one of his female students was eating a donut, he said, “you have a big mouth. When are you going to do the trick where you open your mouth and make your head disappear?” When the student did not respond, the Member said words to the effect of, “you don’t understand this now… perhaps you will remember this in the future”. The Member’s comment made the student feel uncomfortable.

5. During the 2013-2014 school year, the Member used inappropriate words in class, made inappropriate comments to students, and engaged in inappropriate conduct when he:

(a) used accents when talking to students;

(b) commented in class, “what’s going on in Crimea? Like I care!”;

(c) asked permission of the class to swear and, when granted permission, used swear words in class;

(d) referred to a student as a “fucking idiot”;

(e) referred to a student as a “scapegoat”;

(f) yelled at students;

(g) disciplined students by having them do push ups.

6. During a meeting with his Principal on or about June 19, 2014, the Member did not deny the above conduct and comments. He explained to his Principal that students read and hear much worse language than he used in class, and that his teachers made him do push ups when he was a student.

7. As a result of the Member’s comments and conduct, including the fact that some students reported feeling uncomfortable around the Member as a result of his conduct, the Principal requested of the Superintendent that the Member not return to the School the following year.

Board Investigation:

8. By letter dated September 2, 2014, the Board addressed the Member’s use of inappropriate discipline (use of push-ups), use of inappropriate language (obscenities), and use of sexual innuendo with female students. The Board concluded that the Member’s conduct was inappropriate and unacceptable. The Board reminded the Member this was not the first time it had to address similar issues with the Member, and referred to the fact that he had “been administratively transferred five times in as many years”. The Board confirmed the Member had been placed on paid sick leave, effective September 2, 2014. Attached hereto and marked as Exhibit “B” is a copy of the Board’s Letter to the Member dated September 2, 2014.

9. The Board had spoken previously to the Member in 2008-2009, 2009-2010, and again in 2010-2011, each time to advise him that it was inappropriate to yell at students, to call them “stupid” or “idiot”, and to require them to do push ups as a form of discipline.

10. In September 2013, as a result of its concerns, the Board required the Member to successfully complete a mandatory session on professional boundaries and sensitivity training. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter to the Member dated September 5, 2013, and letter confirming completion of the course.

Current Status:

11. The Member has not taught in a classroom since June 2014. As of September 1, 2017, his paid sick leave was converted into an unpaid sick leave.

12. The Member’s union filed a grievance on August 23, 2017, for having been disciplined without cause, which remains outstanding.

PLEA OF NO CONTEST

13. 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”).

14. 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), 1(7.2), 1(15), 1(18), 1(19).

15. 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.

16. 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.

17. 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

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (c) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1) and 1(14) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation outlined in paragraph (c) of the Notice of Hearing was being sought as no evidence is available to substantiate a finding of physical abuse. With respect to the allegation outlined in paragraph (e) of the Notice of Hearing, College Counsel submitted that the allegation is unnecessarily duplicative of the allegation outlined in paragraph (a) of the Notice of Hearing, namely that the Member failed to maintain the standards of the profession. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on February 26, 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(7.2), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to 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 made several inappropriate remarks to students, swore in class, yelled at students and disciplined students by having them do push-ups.

9The Panel finds that the Member failed to maintain the standards of the profession, which include the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession. By swearing in class and referring to a student as a “fucking idiot”, the Member failed to uphold the Standards of Practice, which require teachers to treat students with respect and to promote “safe and supportive learning communities”, among other things. When he yelled at students, the Member did not abide by the Ethical Standards which include “care” and “respect” and state that members must “express their commitment to students’ well-being and learning through positive influence” and honour human dignity and emotional wellness. It is unacceptable for members to demean students and to make them feel uncomfortable in class.

10The Panel finds that the Member abused students verbally. During the 2013-2014 school year, the Member used accents when addressing students, used swear words in class, referred to a student as a “fucking idiot” and yelled at students. This type of behaviour clearly amounts to verbal abuse of students.

11The Panel finds that the Member abused students psychologically or emotionally. Referring to a student as a “fucking idiot” and yelling at students amounts to psychological or emotional abuse. Some of the students reported feeling uncomfortable in the Member’s class as a result of his comments and behaviour. Teachers hold a position of trust and authority in the classroom and are expected to conduct themselves in a way that fosters the well-being of students. The Member repeatedly fell short of meeting this expectation.

12The Panel finds that the Member failed to comply with subsection 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. By repeatedly using inappropriate language, yelling and swearing in the classroom, the Member failed to encourage his pupils in the pursuit of learning and to model respectful behaviour for his students.

13The Panel finds that the Member’s behaviour was disgraceful, dishonourable and unprofessional. Making disrespectful remarks to students, yelling at students and swearing in class, and using inappropriate forms of discipline (i.e. making students do push-ups) demonstrate the Member’s lack of professional judgment. Members of the teaching profession are expected to act as role models and to behave in a respectful manner at all times. The Member engaged in a concerning pattern of inappropriate conduct and he did not improve his behaviour after repeated warnings from his Board.

14Similarly, the Panel finds that the Member’s conduct was unbecoming a member in that it undermined the reputation of the teaching profession and the trust that students and the public place in members of the profession.

F. PENALTY DECISION

15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 26, 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 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 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 or resuming any teaching position or any position for which a Certificate of Qualification and Registration (a “Teaching Position”) is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding respectful relationships with students and classroom management, 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 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

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 the range of acceptable outcomes presented in the case law. College Counsel presented the following two decisions of the Discipline Committee in support of the parties’ jointly proposed penalty: Ontario College of Teachers v. Horsford, 2015 ONOCT 39 and Ontario College of Teachers v. Williams, 2016 ONOCT 55.

17After receiving the parties’ initial penalty submissions, the Panel sought additional submissions from the parties about why the jointly proposed penalty did not include a suspension. College Counsel submitted that previous instances in which the Discipline Committee has ordered a suspension usually involve underlying conduct of a more serious nature or members who have been previously disciplined at the Board or College level. College Counsel explained that, even in Ontario College of Teachers v. Brown, 2017 ONOCT 38, which involved more concerning misconduct than the Member’s case, a suspension was not ordered. It would therefore not be appropriate to order a suspension in the Member’s case. Counsel for the Member agreed with the submissions of College Counsel and added that the concept of progressive discipline must be considered when determining the appropriateness of suspensions. Counsel for the Member reminded the Panel that this is the Member’s first appearance in front of the Discipline Committee and that, in light of the previous decisions presented by College Counsel, the penalty agreed upon between the parties is reasonable. The Panel accepts these additional submissions.

18The 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 misconduct despite the prior warnings that the Member received from the Board, and the fact that the Member engaged in inappropriate behaviour even after completing a session on professional boundaries and sensitivity training in 2013. In terms of mitigating factors, the Member does not have a previous disciplinary history at the College and did not contest his misconduct, saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s repeated inappropriate conduct, despite prior warnings from the Board, warrants a reprimand by his peers. Members are expected to serve as role models for students, which the Member failed to do by repeatedly making inappropriate comments, swearing and yelling in class. 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.

20The Panel finds that the course of instruction regarding respectful relationships with students and classroom management 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, should he decide to return to the classroom.

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 at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.