DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Vite 2020 ONOCT 145

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

Marcello Rosario Vite, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARCELLO ROSARIO VITE (REGISTRATION #114211)

PANEL: Godwin Ifedi, Chair

Mary Ellen Gucciardi, OCT

John Hamilton, OCT

HEARD: February 13, 2020

Zirka Jakibchuk, for the Ontario College of Teachers

Jack Brown and Angela Zhu, Student-at-Law, for Marcello Rosario Vite

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 13, 2020 at the Ontario College of Teachers (the “College”).

2Marcello Rosario Vite (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 10, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Marcello Rosario Vite 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 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);

(e) 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);

(f) 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. Marcello Rosario Vite is a member of the Ontario College of Teachers (the “College”). Attached hereto and marked as Appendix “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 Toronto District School Board [the “Board”] as an occasional teacher.

3. At all material times, Students 1, 2 and 3 were students at [XXX] School (“School 1”) in Toronto, Ontario. Students 1 and 2 were female and Student 3 was male.

4. At all material times, Students 4 and 5 were students at [XXX] Institute (“School 2”) in Toronto, Ontario. Student 4 was female.

5. In April 2016 and February 2018, while on occasional teaching assignments at School 1 and School 2, the Member made several inappropriate comments to students.

6. At the time of these incidents, the Member was 70 and 72 years old respectively. He had been teaching for the Board as an occasional teacher at various schools, with no previous disciplinary issues, since 2000.

7. On April 22, 2016, while fulfilling an occasional assignment teaching a [XXX] class at School 1, the Member made several inappropriate comments to students in the class.

8. Through its investigation, the Board found that the Member insinuated that Student 1 and her friend were lovers and asked Student 2 if she was lesbian or straight. The Member acknowledges this conversation. However, he states that he did not inquire about the students’ sexual orientation, rather they identified themselves to him as being openly gay. He also states that he did not intend for his comments to be in any way discriminatory or prejudicial, and recalls informing the students that his niece was the co-chair of the Toronto Pride Parade and that he is personally supportive of LGBTQ+ rights.

9. In the same class, the Member insinuated that Student 3 was related to an on-air personality based on Student 3’s appearance and/or name, and asked Student 3, “you’re not black?” The Member states that Student 3 had the same surname as a local television broadcaster who is a person of colour. The Member asked Student 3 if he was related to the television broadcaster, to which Student 3 replied that he does not identify as a person of colour. The Member states that he did not intend to racialize the student or discriminate against him in any way, rather he asked the question based on the similarity of the surnames shared by Student 3 and the well-known local broadcaster.

10. In regard to the incidents that occurred on April 22, 2016, the Board issued a discipline letter to the Member on October 26, 2016, blocking him from returning to School 1 as an occasional teacher for one year. Attached hereto and marked as Appendix “B” is a copy of the Board’s letter of discipline, dated October 26, 2016.

11. On February 20, 2018, while fulfilling an occasional assignment teaching a Grade [XXX]class at School 2, the Member made two inappropriate comments to students in the class.

12. Several students in the class were discussing allergies. After hearing that Student 4 was allergic to nuts, the Member asked something to the effect of, “what do you do with your boyfriend?” When Student 4 indicated that she did not have a boyfriend, the Member stated, “Oh, I’m just joking.” Student 4 understood the joke to have a sexual meaning.

13. In his interview with the Board, the Member acknowledged that his comment was inappropriate and apologized immensely. He indicated that this was a “spontaneous, off the cuff joke”, and insisted that it did not have any sexual intent. The Member states that as an immigrant from Italy, he did not realize that the word “nuts” is used idiomatically by native English speakers to refer to male sexual organs. Rather, he meant to imply, “How do you go out to eat together when you have to be so vigilant?”

14. In the same class, the Member remarked to Student 5, “you must be Asian because of your eyes.” The Member recalls teaching the students in the [XXX] class that day a technique he had learned for drawing eyes and making technical comments about how one would draw or paint the eyes of a subject who appears to have a European background versus a subject who appears to have an East Asian background. The Member states that he did not intend for his comments to be in any way discriminatory or prejudicial.

15. In regard to the incidents that occurred on February 20, 2018, the Board issued a discipline letter to the Member on May 16, 2018, blocking him from returning to School 2 as an occasional teacher for two years and from accepting any occasional teaching assignments with the Board from May 17 to 24, 2018 (i.e. for 5 working days). The Member was also required to complete a program of professional development in the area of boundaries with students by June 18, 2018. Attached hereto and marked as Appendix “C” is a copy of the Board’s letter of discipline, dated May 16, 2018.

16. Although the Member believes that these interactions may have arisen in part due to a mutual misunderstanding between him and some of the students he was teaching, he acknowledges that his comments were inappropriate and states that he is deeply remorseful for these incidents.

GUILTY PLEA

17. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-16 above (the “Admitted Facts”).

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

19. 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.

20. 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 February 13, 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

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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 made several inappropriate remarks to students while on occasional teaching assignments, including comments regarding students’ sexual orientation and ethnicities.

8The Panel finds that the Member failed to maintain the standards of the profession. When the Member asked Student 1 if she and her friend were lovers, questioned Student 2 about her sexual orientation and made a joke with offensive undertones to Student 4, the Member did not uphold the standards of practice, which require teachers to “treat students equitably and with respect” and to promote “safe and supportive learning communities”, among other things. The Member’s racially-charged remarks to Student 3 (“you are not black?”) and to Student 5 (“you must be Asian”) did not uphold the ethical standard of respect, which states that members must “honour human dignity” and foster “emotional wellness”. Regardless of his intentions in making these comments, the Member failed to provide a safe classroom environment in which students can learn and develop freely, without being subjected to inappropriate questions regarding their personal identities.

9The Panel finds that the Member abused students verbally. The Member repeatedly made insensitive and inappropriate comments to students in class, some of which were embarrassing or upsetting to students. The Board’s letter of discipline dated May 16, 2018, issued in reference to the Member’s remarks to Student 4 and Student 5, states that the Member’s misconduct was “a source of embarrassment and upset to the students”. Though he may have intended it as a joke, the Member’s question to Student 4 (“what do you do with your boyfriend?”) in relation to a discussion about nut allergies, in particular, was highly inappropriate. This behaviour constitutes the verbal abuse of students.

10The Panel finds that the Member abused students psychologically or emotionally. All of the instances referenced above regarding inappropriate comments to Students 1, 2, 3, 4 and 5 amount to psychological or emotional abuse of students. The above-referenced letter of discipline from the Board dated May 16, 2018 indicates that the Member’s comments made Student 4 and Student 5 feel embarrassed and upset. Even if remarks are made in jest, the Member ought to have known that personal questions and comments regarding an individual’s ethnicity or sexual orientation may lead to emotional discomfort or distress for students. Parents and members of the public expect teachers to contribute to the development, not the hindrance, of students’ emotional well-being.

11The 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 making a series of inappropriate remarks towards five students, the Member has failed to uphold the principles of moral conduct expected of teachers under subsection 264(1)(c) of the Education Act.

12The Panel finds that the Member’s comments were disgraceful, dishonourable and unprofessional. Making remarks that are racially charged, that are inappropriately personal, or that relate to a person’s sexual orientation is unprofessional, especially in a classroom setting. Members of the teaching profession are expected to exercise good judgment and maintain appropriate boundaries at all times. The Member failed to meet these expectations.

13Similarly, the Panel finds that the Member’s above-mentioned conduct, in its entirety, was unbecoming a member in that it undermined the reputation of the teaching profession, and the trust that students and the public at large place in members.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 13, 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 of the Ontario College of Teachers (the “Registrar”) is directed to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions and limitations 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 relating to professional boundaries with students and a course of instruction relating to appropriate communication with students, including cultural sensitivity training. These courses shall be pre-approved by the Registrar and be subject to the following conditions:

(i) for each course, 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, for each course, 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 each course outlined in (a) above, the Member shall provide to the Registrar a written report 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

15The 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. Bielby, 2018 ONOCT 38, Ontario College of Teachers v. Sypus, 2018 ONOCT 9, Ontario College of Teachers v. Laforge, 2019 ONOCT 43 and Ontario College of Teachers v. Hockin, 2015 ONOCT 38.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the serious and repeated nature of his misconduct. Five students were subjected to inappropriate remarks by the Member. The Member was disciplined by the Board on two separate occasions, in October 2016 and May 2018, for similar conduct. Despite his 2016 Board discipline, the Member engaged in similar misconduct in 2018. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, expressed remorse and had not been previously disciplined by the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s inappropriate conduct, despite having been disciplined by the Board following the first incidents in October 2016, warrants a reprimand by his peers. Members are expected to serve as role models for students, which the Member failed to do by making several inappropriate remarks to Students 1, 2, 3, 4 and 5. The Member made insensitive remarks about students’ ethnicities, sexual orientation, relationship status and other personal issues. 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.

18The Panel finds that the two courses of instruction relating to (1) professional boundaries with students and to (2) appropriate communication with students, including cultural sensitivity training, will assist in the rehabilitation of the Member. Although the Member is remorseful, the Panel finds that the repeated nature of the incidents suggests that the Member will benefit from the remedial instruction. The coursework will remind the Member of his obligations as a teacher and will help him make better decisions in any future interactions with students.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.