Discipline Committee of the Ontario College of Teachers
Ontario College of Teachers v Orme 2020 ONOCT 148
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
John Thomas Orme, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOHN THOMAS ORME (REGISTRATION #440553)
PANEL: Mary Ellen Gucciardi, OCT, Chair Ann Ciaschini, OCT Marlène Marwah
HEARD: October 25, 2019, January 28, 2020
Jason Bennett, for the Ontario College of Teachers
No one appearing for John Thomas Orme
Rebecca Durcan and 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 October 25, 2019 and January 28, 2020 at the Ontario College of Teachers (the “College”).
2John Thomas Orme (the “Member”) did not attend the hearing and did not have legal representation.
3Counsel for the College submitted an Affidavit of Tatiana Tkatch (Exhibit 2) sworn on October 21, 2019, to show the efforts taken by the College to inform the Member of the allegations against him, the time and date of the hearing, as well as the range of penalty and costs being sought by the College. In this affidavit, Ms. Tkatch, a law clerk with the College, outlines that the College sent the necessary documents to the Member’s last known address and provides proof of service. The Affidavit also includes email communications in which the Member responds to College Counsel’s email which advises him of the date of the hearing.
4Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the range of penalty and costs being sought by the College. The Member did not appear at the hearing and the Panel heard this matter in the absence of the Member.
5Following the hearing, the Panel found that the Member engaged in professional misconduct contrary to subsections 1(7), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. Following submissions by College Counsel, the Panel made further orders as to penalty and costs. The following are the Panel’s reasons for the finding of misconduct, the penalty order, and the costs order.
A. PUBLICATION ban
6The 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
7The allegations against the Member in the Notice of Hearing dated December 11, 2018 (Exhibit 1) are as follows:
IT IS ALLEGED that John Thomas Orme 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)1;
(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); and
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
John Thomas Orme is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Hamilton Wentworth District School Board (the “Board”) as a Grade [XXX] teacher at [XXX] School (the “School”) in Hamilton, Ontario.
At all materials times Student 1 and Student 2 were male students at the School.
In 2016, the Member made inappropriate verbal comments to students or about students at the School, including:
(a) while in a School hallway occupied with students and staff, the Member said “Too bad they can’t bring back the strap”;
(b) while in the presence of other students, the Member embarrassed Student 1 by asking him “Why are you going into that classroom? To ask someone to the dance?” and “Why are you asking a boy to dance? That makes me nervous.”;
(c) while in the presence of other students, the Member told Student 1 that it was the Member’s legal duty to call the Children’s Aid Society because Student 1’s parents were going to be away from home for five days; and
(d) after Student 1 informed the Member that there were other adults in the household, the Member told Student 1 that he was still going to call the Children’s Aid Society to report the situation.
Also in 2016, the Member raised his voice and/or yelled at students, sometimes in front of other students, including raising his voice at Student 2 and saying, “I am done with you. You are going to the office…bike off.”
On or about December 21, 2016, the Board suspended the Member for five days without pay for failing to create a safe and supportive environment for students within his classroom, citing the incidents noted in paragraphs 4 and 5 above.
8Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel submitted that the withdrawal was being sought because the College did not call an expert regarding the standards of the profession and there was therefore insufficient evidence to establish a breach of standards. The Panel accepted College Counsel’s submission and granted this request.
C. THE MEMBER’S PLEA
9As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.
D. THE EVIDENCE
10The College relied solely on the Affidavit of Masuma Khangura (“Affidavit”) sworn October 1, 2019 (Exhibit 4) in order to prove the allegations set out in the Notice of Hearing. Ms. Khangura is the former Manager of Labour Relations at the Hamilton-Wentworth District School Board. Her evidence was that, in 2016, the Member was employed by the Board in a variety of teaching positions and taught Grade [XXX] students. In her affidavit, Ms. Khangura provided a review of the Member’s behaviour as observed by the Member’s students and by fellow teachers. Ms. Khangura’s affidavit outlines discipline decisions that were made by the Board as a result of these observations. The following were attached as exhibits to the Affidavit:
Letter from the Board suspending the Member with pay pending an investigation, dated October 27, 2016;
Discipline letter from the Board summarizing the investigation and the Board’s findings, dated December 21, 2016; and
Notes of interviews held in the course of the Board investigation, and in particular:
(a) notes made by Ms. Khangura’s colleagues of interviews with various teachers at the School held between November 28, 2016 and December 9, 2016;
(b) notes made my Ms. Khangura’s colleagues of an interview with the Member held on December 5, 2016; and
(c) notes made by Principal Kim Collier of interviews with 13 of the Member’s students.
Ms. Khangura conducted the interviews with teachers and with the Member. Student interviews were conducted by Principal Collier.
11The Member was not present at the hearing and no did not present any evidence in his defence.
E. SUBMISSIONS OF COLLEGE COUNSEL
12College Counsel acknowledged that the Affidavit contains hearsay evidence and submitted that such evidence should be admitted pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) as it is relevant and reliable. The Member was provided with the opportunity to cross-examine Ms. Khangura and chose not to do so. The exhibits to the Affidavit are letters from the Board that speak to the Board’s findings and are clear documentation of the misconduct.
13College Counsel submitted that the evidence in Ms. Khangura’s affidavit proves each of the allegations of misconduct on a balance of probabilities, and that the Panel should find that the Member engaged in professional misconduct as alleged, with the exception of the withdrawn allegation.
F. DECISION ON FINDING
14The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.
15Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on January 28, 2020, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(15), 1(18) and 1(19).
G. REASONS FOR DECISION
16The Panel accepts the Affidavit as admissible pursuant to s. 15(1)(b) of the SPPA. The Affidavit is hearsay evidence which is relevant to the hearing and which is reliable. Ms. Khangura’s affidavit is supported by notes that were prepared by independent parties contemporaneously with the Board’s investigation and may reasonably be viewed as reliable documentary evidence of the events described therein. The Member was provided with a copy of the Affidavit and advised of his right to cross-examine Ms. Khangura. He chose not to attend the hearing to challenge her evidence.
17The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing.
(1) Evidence and Factual Findings
18Based on the notes of interviews contained within the Affidavit, the College has proven on a balance of probabilities that the Member made inappropriate verbal comments to or about students at the School and that the Member routinely yelled at students.
19During his interview with the principal, Student 1 described an incident in which he advised the Member that his parents were going away for five days. According to Student 1, the Member threatened to call the Children’s Aid Society (“CAS”) in response. Student 1 clarified that his aunt and uncle would be home with him but the Member advised that he was going to call regardless. When another student asked the Member what CAS was, he replied that “it’s a place that takes parents away from kids so that they don’t see them again.” Student 1 advised the principal that he couldn’t work for the whole day due to his fear of being removed from his home by CAS. When the Member was confronted about this incident, he admitted that the exchange occurred but wanted to clarify two details. First, the Member advised that it was another student who made the comment about CAS being a place that takes children away. Second, the Member advised that Student 1 likely misunderstood that, after he found that Student 1’s aunt and uncle would be present, the Member’s intention was to call Student 1’s aunt and uncle and not CAS. The Member also confirmed that he was aware that Student 1 has [XXX[. The Panel finds that in both versions of the exchange, the Member inappropriately brought up the possibility of calling CAS to a student with [XXX], in the presence of other students.
20Student 1 advised Principal Collier that the Member often makes him feel bad about himself, that the Member is rude to him, and that the Member yells at him and humiliates him. Several other students also advised Principal Collier that the Member routinely yells at students in his class. The Member denied this behaviour during his interview. Due to consistency among student interviews and consistency with some of the Member’s admissions regarding his conduct, the Panel prefers the students’ account of the Member’s behaviour. The Panel accepts that the Member routinely yelled at students, made Student 1 feel bad about himself, and humiliated Student 1.
21The Affidavitincludes notes of an interview with Christina Maciel, a fellow teacher at the School. During this interview, Ms. Maciel advised that she overheard the Member saying to Student 1 “did you go ask someone to the dance?” and “why are you asking a boy to the dance? That makes me nervous.” In his interview with the Board, the Member advised that he told Student 1 “you are going to ask him to the dance? Just kidding” and “you are making me nervous jumping from one room to another, pick a room and stay in it”. The Panel finds that in both Ms. Maciel’s and the Member’s versions of the exchange, the Member showed disregard for Student 1’s [XXX[ and inappropriately suggested that Student 1 was asking a boy to the dance.
22In her interview, Ms. Maciel also advised that she overheard the Member making a comment along the lines of “too bad that they can’t bring back the strap” in the presence of students and teachers. In his interview, the Member denied saying those exact words but he did remember saying something about bringing back corporal punishment and that he got the strap when he was a kid. The Panel finds that according to both versions of the exchange, the Member made inappropriate comments regarding corporal punishment in the presence of students.
23During the Member’s interview with Board representatives, the Member was asked whether he yelled at a student and told him “I’m done with you. You’re going to the office. Bike off”. The Member denied yelling at the student or making that comment. The Board nevertheless made a finding that the Member made the comment (Exhibit C). However, the Panel was not presented with evidence of the comment being made. In the notes attached to the Affidavit, none of the students or teachers interviewed actually witnessed the “bike off” comment. The Panel cannot rely on a board finding as determinative of whether or not misconduct occurred. The Panel’s role is to review the evidence provided by the College and make their own determination regarding the misconduct. While the Panel finds that the College provided evidence that the Member often raised his voice at students, the College has not made out the allegation that the Member specifically said “I am done with you. You are going to the office…bike off” as alleged in paragraph 5 in the Notice of Hearing.
(2) Legal Conclusions
24The Panel finds that the Member’s conduct was a breach of subsections 1(7), 1(7.2), 1(15), 1(18), and 1(19) of Ontario Regulation 437/97.
25The evidence demonstrates that the Member verbally abused students in his class by routinely yelling and raising his voice at students. In particular, the Member verbally abused Student 1 by being rude to him, shouting at him, and humiliating him.
26The evidence further demonstrates that the Member psychologically or emotionally abused Student 1. The Member was aware that Student 1 had [XXX]. Despite this knowledge, the Member made comments to Student 1 about calling CAS which made the student anxious and worried about the possibility of being taken away from his parents. The Member further made inappropriate comments about Student 1 asking a boy to the dance. Psychological abuse is characterized as behaviour that can seriously interfere with a child’s cognitive, emotional, psychological, or social development. In this case, the Member knowingly disregarded Student 1’s [XXX], which resulted in Student 1 being emotionally distressed. Regardless of the Member’s intentions, it was inappropriate to bring up CAS to a student with [XXX] and in the presence of other students.
27The Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(b) of the Education Act provides that it is the duty of a teacher to encourage pupils in the pursuit of learning. By frequently yelling at his students during class, the Member detracted from his students’ formative education and failed to encourage his students in their pursuit of learning.
28The Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The Member’s comment about corporal punishment in the presence of students and teachers was entirely unprofessional. It is not appropriate to joke about abusive and painful physical punishments in front of students.
29Similarly, the Member’s conduct is unbecoming a member of the profession. Through his treatment of his students, and particularly Student 1, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers.
H. PENALTY SUBMISSIONS OF COLLEGE COUNSEL
30College Counsel submitted that the appropriate sanctions in this case are a reprimand, coursework regarding classroom management with a focus on anger management, and a two-month suspension. College Counsel presented the Panel with a previous decision of the Discipline Committee regarding the Member’s misconduct during the 2010-2011 and 2011-2012 school years: Ontario College of Teachers v. Orme, 2019 ONOCT 107 (“Orme #1”). This decision also outlined the Member’s discipline history with the Board. College Counsel submitted that the Member’s misconduct in this case is not deserving of a significant penalty when considered on its own, but that the Discipline Committee should consider the conduct of the Member in the totality of the Member’s behaviour over six years.
31College Counsel further submitted that, in order for the Member to get a proportional sanction to his pattern of misconduct, the two-month suspension should be served consecutively to the suspension ordered in Orme #1. College Counsel submitted that this kind of consecutive penalty was ordered previously in Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56 (Chong Yen #1)andOntario College of Teachers v. Chong Yen, 2019 ONOCT 28 (Chong Yen #2). College Counsel advised the Panel that, to his knowledge, the Member is not teaching in Ontario and hasn’t for quite some time. As such, the penalty is prospective in nature.
I. PENALTY DECISION
32On January 28, 2020, the Panel made the following order as to penalty:
The Member is directed to appear before the Discipline Committee within 90 days of the Panel’s Decision, Reasons for Decision and Order to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to impose the following terms, conditions or limitations (“TCLs”) on the Member’s Certificate of Qualification and Registration, the fact of such TCLs to be recorded on the Register until such time as they are fulfilled:
(a) Prior to commencing or resuming a teaching position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding anger management, subject to the following conditions;
(i) the Member will provide to the course provider approved by the Registrar a copy of the Decision, Reasons for Decision and Order;
(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 Panel’s concerns regarding the Member’s professional misconduct;
(iii) 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.
- The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two months subject to the following:
(a) the suspension shall commence immediately following the completion of Member’s previous suspension by the College;
(b) the suspension shall be served during the school year; and
(c) the fact of the suspension is to be recorded on the Register.
J. REASONS FOR PENALTY
33In arriving at its decision with respect to penalty, the Panel carefully considered the College’s submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection.
34The aggravating factors in the Member’s case are that the Member’s misconduct demonstrates a pattern of inappropriate behaviour over the course of six years, that the Board had advised the Member to correct his behaviour in 2015 and it did not improve, and that the Member’s conduct led to emotional harm for Student 1. In terms of mitigating factors, the Member was cooperative with the Board investigation and admitted most of the misconduct in his interview with the Board.
35The Panel considered the Member’s circumstances in comparison to the cases provided. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that it is appropriate to order a reprimand, a suspension of up to three months, and coursework in this case. The misconduct in Chong Yen #1 and Chong Yen #2 included similar behaviour to that of the Member – inappropriate comments to students and several instances of yelling at students. However, in both those cases, the panel found that the misconduct did not amount to verbal and emotional abuse, as it did in this case. In Chong Yen #1, the panel ordered a reprimand and coursework, and in Chong Yen #2, the panel ordered a second reprimand, a three-month suspension, and further coursework.
36The Panel finds that the Member’s inappropriate pattern of behaviour warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries with students and colleagues. He yelled at students on several occasions, and emotionally abused a student with [XXX]. Members of the teaching profession are expected to promote safe and supportive learning environments and to model appropriate and respectful behaviour. The Member’s conduct fell short of meeting these expectations. 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.
37Given the repeated nature of the Member’s misconduct, the Panel finds that a two-month suspension is reasonable and appropriate. The Member made several inappropriate comments and repeatedly yelled at students, which is completely unacceptable in a professional teaching environment. The Member made Student 1 feel anxious and upset because of his comments. The suspension will serve as a specific deterrent to the Member and should reinforce for him that the College does not tolerate the type of conduct in which he engaged. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession. The Panel orders that this suspension be served following the suspension ordered in Orme #1 for the reasons submitted by College Counsel. In order for the Member to realize the deterrent effects of the suspension, it should also be served during the school year.
38The Panel finds that the course of instruction regarding anger management will assist in the rehabilitation of the Member, should he ever return to a teaching position for which a Certificate of Qualification is required. 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.
39The Panel is satisfied that the penalty in this case is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
K. COSTS SUBMISSIONS OF COLLEGE COUNSEL
40College Counsel sought an order for costs payable by the Member to the College pursuant to s. 30(5) at paragraph 4 of the Act. College Counsel submitted a bill of costs setting out disbursements of $54.40 claimed by the College. The disbursements incurred relate to costs of service of the Member. College Counsel cited Rule 16.05(3) and Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee for the proposition that the College does not have to give evidence of the cost or expense of a hearing if the request is equal to or less than $10,000 per hearing day. As such, he submitted that an appropriate order for costs would be $2,000 plus disbursements ($2,054.40). College Counsel submitted that this quantum is appropriate as the Member was uncooperative and declined to participate in the discipline process entirely. College Counsel noted that the College was not seeking the full Tariff amount since the College was able to reduce costs in this case by proceeding by way of affidavit evidence.
L. decision on costs
41On January 28, 2020, the Panel made the following order as to costs:
- The Member shall pay costs of this proceeding to the College, fixed in the amount of $2,000, within 120 days of the date of the Decision, Reasons for Decision and Order.
M. REASONS FOR decision on costs
42The Panel recognizes that an award of costs is discretionary and compensatory in nature rather than punitive. The Panel agrees with College Counsel that the College does not have to provide evidence of costs of a day of hearing if the amount claimed is equal to or less than the amount set by Tariff A (currently set at $10,000).
43The Panel finds that it is appropriate to order costs against the Member in the amount of $2,000. The Panel finds four factors relevant to this determination. First, the evidence in this matter was tendered through an affidavit and did not involve the expense of time, travel and inconvenience for any witnesses. Second, although this hearing took place over the course of two days, the Member was not responsible for the duration of the hearing. The second day of the hearing had to be scheduled for the College to provide a transcript of the notes attached to the Affidavit. Third, the Member completely refused to participate in this proceeding or cooperate with College Counsel in the discipline process. Fourth, the College put the Member on notice that it would be seeking costs if it was successful in obtaining findings of professional misconduct.
44The Panel finds that the cost order payable by the Member to the College is just and appropriate in the circumstances.
Date: February 21, 2020
Mary Ellen Gucciardi, OCT Chair, Discipline Panel
Ann Ciaschini, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel