DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Keenan 2020 ONOCT 144

Date: 2020-03-09

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

Tom Walter Keenan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

TOM WALTER KEENAN (REGISTRATION #201312)

PANEL: Irene Dembek, OCT, Chair

Nicola Powadiuk, OCT

Jonathan Rose

HEARD: March 9, 2020

Jason Bennett, for the Ontario College of Teachers

Jack Brown, for Tom Walter Keenan

Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) 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 March 9, 2020 at the Ontario College of Teachers (the “College”).

2Tom Walter Keenan (the “Member”) did not attend the hearing but 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 18, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Tom Walter Keenan 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 failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(c) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

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. Tom Walter Keenan 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.

2. At all material times, the Member was employed by the Algoma District School Board as a teacher at [XXX] School (the “School”) in Sault Ste. Marie, Ontario.

3. During the 2018-2019 academic year, the Member was a manager of the School’s [XXX] team (the “[XXX] Team”) and head of the School’s [XXX] department.

4. At all material times, Student 1 was an [XXX]-year-old male student of the School and a member of the [XXX] Team.

5. In November 2018, the [XXX] Team was participating in a [XXX] in [XXX], [XXX] which required overnight accommodation at a local hotel.

6. On the evening of November 19, 2018, the Member and the [XXX] Team attended a [XXX] game in [XXX], [XXX]. The parents and [XXX] Team staff, including the Member, had the use of a luxury box for the duration of the game while the student players watched the game from a separate, adjacent luxury box. During the game, one of the parents bought an alcoholic beverage for the Member, which the Member consumed. Student 1 and two other student players would later suggest that the Member was impaired during and/or after the game, however the Member denies being impaired at any time that evening.

7. Later that evening, while the Member was conducting room checks with the head coach at the [XXX] Team’s hotel, the Member entered the hotel room of Student 1, which Student 1 was sharing with three other members of the [XXX] Team. Student 1 was in the bathroom, taking a bath, with the door closed. The Member spoke to Student 1 through the door to make sure Student 1 was present, safe and healthy. Student 1 partially opened the bathroom door and said “Wait, I need to get a bigger towel” to which the Member responded:

(a) “You don’t have much to cover up anyway”, or words to that effect, in reference to Student 1 covering himself with a towel;

(b) “Guys don’t take baths”, or words to that effect; and

(c) “Oh, I see. This is the bath-taking room”, or words to that effect.

8. At the time they were uttered, the Member believed his comments to Student 1 to be jokes made in good faith.

9. During the Board’s investigation, the Member admitted to drinking one alcoholic beverage while supervising students at the November 19, 2018 [XXX] game, acknowledged that this was inappropriate, and took responsibility for his actions.

10. On November 29, 2018, the Board issued a verbal caution to the Member to ensure that he complies with the Board’s Drug & Alcohol Policy 6.10 which prohibits the possession and use of alcohol, illicit drugs and cannabis that is consumed for non-medical purposes by any person on school property or during out-of-class programs or activities conducted by, or under the auspices of, the Board wherever such programs or activities are held.

11. Following its investigation, the Board issued a letter of expectation to the Member dated December 14, 2018 in connection with the inappropriate comments he made to Student 1 on the evening of November 19, 2018. The Board noted that it “appreciates and acknowledges that without hesitation [the Member] admitted to making these comments to the student” and that the Member “understood the inappropriateness of these comments and…took full responsibility for [his] actions.” Attached hereto and marked as Appendix “B” is a copy of the Board’s letter dated December 14, 2018.

GUILTY PLEA

12. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1 to 11 above (the “Admitted Facts”).

13. The Member acknowledges that paragraphs 6, 7 and 9 of the Admitted Facts constitute 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 “C”.

14. The Member also acknowledges that paragraphs 6, 7 and 9 of the Admitted Facts constitute conduct that 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(11) and 1(18).

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 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 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 his counsel and counsel for the College with respect to the penalty does not bind the Discipline Committee; and

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

16. 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

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on March 9, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(11) and 1(18) [unprofessional].

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 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 failed to act professionally while supervising students during an overnight school trip to a [XXX] game by drinking alcohol and making inappropriate comments to a student.

8The Member’s conduct fell below the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. Among other things, members are required to demonstrate their commitment to students’ well-being through positive influence and professional judgment in practice (“Care”) and to demonstrate respect for their students’ emotional wellness (“Respect”). The Member is expected to model respectful conduct to students. Whether said in jest or not, the Member’s comment about Student 1’s body (“you don’t have much to cover up anyway”) and his comments, including “guys don’t take baths” were sexist and demeaning. Through his conduct, the Member failed to act as a positive influence for his students and failed to show respect for his students’ well-being.

9The Member also failed to adequately supervise students, contrary to subsection 1(11) of Ontario Regulation 437/97 when he consumed alcohol while supervising his students who were watching a [XXX] game. Though the Member denied being impaired at any time during or after the game, he should not have consumed a substance that could make him impaired and compromise his ability to ensure the safety and well-being of all students under his professional supervision.

10The Member’s inappropriate comments to Student 1 were also unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Teachers have a responsibility to maintain a positive and inclusive culture, both at school and during out-of-class activities. In his leadership role as the [XXX] team’s manager and the head of the School’s [XXX] department, the Member should have been a positive role model for [XXX], which he failed to do.

F. PENALTY DECISION

11The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 9,2020 the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a reprimand, by videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”); and

2. 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) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction covering professional boundaries. 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 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. Graham, 2015 ONOCT 32 and Ontario College of Teachers v. Gal, 2014 ONOCT 40.

13The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel agrees with the parties’ joint submission that there were no aggravating factors in this case. 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 has not previously been the subject of discipline proceedings at the College during his long teaching career. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

14The Panel finds that the Member’s inappropriate comments and conduct warrants a reprimand by their peers. It is inappropriate for members to make sexist jokes or comments to students or to consume alcohol while supervising students. Members are expected to serve as positive role models for students, which the Member failed to do. 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 boundaries 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.

16The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.