DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Wilson 2020 ONOCT 151

Date: 2020-01-03

PENALTY DECISION AND REASONS FOR DECISION

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

Avery Jean Wilson, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

AVERY JEAN WILSON (REGISTRATION #642874)

PANEL: Tom Potter, Chair

Jean-Luc Bernard, OCT

Sara Nouini, OCT

HEARD: December 4, 2019

Andrew Matheson, for the Ontario College of Teachers

No one appearing for Avery Jean Wilson

Renée Kopp, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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 or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

1On December 7, 2018, a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) found that Avery Jean Wilson (the “Member”) engaged in professional misconduct. The Panel’s Decision on Finding and Reasons for Decision was subsequently released on March 25, 2019.

2The Panel found that, between September 2015 and February 2017, the Member engaged in sequential relationships of a sexual nature with two male Grade [XXX] students. During this time, the Member was employed as a part-time teacher and “Associate Faculty” at [XXX] (the “School”). She held supervisory responsibilities over the School’s boarding students and lived in the dormitory part-time. Both students were enrolled at the School and living in the dormitory. The Member had inappropriate communications with Student 1 on social media and sent him a nude photograph of herself. In addition, she went on a camping trip with Student 1 in May 2016 and, during this trip, had physical contact with Student 1 and permitted him to take a topless photograph of her. The Member had inappropriate electronic communications with Student 2 and engaged in inappropriate physical touching including holding hands, hugs and kisses on the cheek. Additionally, she had a physical and sexual encounter with Student 2 in January or February 2017 consisting of “kissing and groping” that included the Member touching Student 2’s torso and permitting Student 2 to touch her breasts, buttocks and vagina over her clothes.

3Based on this conduct, the Panel found that the Member contravened subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

4The Panel reconvened on December 4, 2019 to hear submissions with respect to penalty. The Member did not attend this phase of the hearing and did not have legal representation.

5Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 11) sworn December 3, 2019 to show that the Member had been informed of the time and date of the penalty hearing, as well as the penalty and costs being sought by the College. In this affidavit, Ms. Spano, a law clerk with McCarthy Tétrault LLP, outlines the College’s and her communications with the Member. She confirms that all correspondence was sent to the Member’s last known residential or email address in the College’s records. None of the emails were returned as undeliverable. An attempt to serve the Member personally, at her residential address on record, was unsuccessful as the process server was advised by the inhabitant that she did not know the Member and had moved into the home earlier that year (Exhibit “E” to Ms. Spano’s affidavit). An attempt to reach the Member by telephone was unsuccessful as the telephone numbers on file for the Member were no longer in service. The Member failed to respond to any of the communications.

6The Panel notes that a member is obliged to provide the College with up to date contact information, including home address, telephone number and email address, pursuant to sections 31.01 and 31.02 of the College Bylaws. Subsection 52(2) of the Ontario College of Teachers Act, 1996 (the “Act”) provides a rebuttable presumption of effective service where a document is mailed to the last address of the Member in the College’s records. It is apparent that the Member has failed to update the College with her current residential address and telephone number but her email address would appear to be valid.

7Based on Ms. Spano’s evidence, the Panel was satisfied that the Member was provided with notice of the time and date of the penalty hearing, as well as the penalty and costs being sought by the College. The Panel delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. The Member did not appear. The Panel therefore heard this matter in the absence of the Member.

A. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

8College Counsel submitted that section 30.2 of the Act applies and hence the Panel is obliged to order a reprimand and revocation of the Member’s certificate of qualification and registration.

9He acknowledged that, at the time of the Member’s misconduct, revocation was not a mandatory penalty. However, he submitted that the Panel is obliged to apply the current Act as at the date of the penalty hearing, and the transitional provisions at subsection 63.1(5) and section 63.2 are engaged. The transitional provisions provide that section 30.2 mandatory revocation applies in the event of a finding of sexual abuse of a student that occurred prior to the amendment date so long as the Panel has not made an order under subsection 30(4).

10College Counsel submitted that the nude photo the Member permitted Student 1 to take during the May 2016 camping trip was behaviour of a sexual nature by the Member towards Student 1, in accordance with the definition of “sexual abuse” in section 1 of the Act. The Member’s “making out” in February 2017 with Student 2 was 1) touching of a sexual nature of Student 2 by the Member, and 2) behaviour of a sexual nature by the Member towards Student 2, in accordance with the definition of “sexual abuse” in section 1 of the Act.

B. PENALTY DECISION

11The Panel makes the following order as to penalty:

1. The Member is directed to receive a written reprimand 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 of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

C. REASONS FOR PENALTY DECISION

12The Panel determined that section 63.2 of the Act applies to the penalty hearing and hence the Panel is obliged to order a reprimand and revocation.

13Section 63.2 is the transitional provision for the amendments to section 30.2 effected by the Safe and Supportive Classrooms Act, 2019. Those amendments repealed the former version of section 30.2 (which provided a specific list of enumerated acts of sexual abuse under subsection 30.2(2) that would attract the mandatory penalties) and substituted the pre-existing and broader definition of “sexual abuse” in section 1 of the Act.

14Section 63.2 provides:

Transition: Safe and Supportive Classrooms Act, 2019

Sexual abuse

63.2 Section 30.2, as amended by section 14 of Schedule 13 to the Safe and Supportive Classrooms Act, 2019, applies to an act of professional misconduct that consists of or includes sexual abuse of a student that occurred before the day section 23 of that Schedule came into force if no order has been made in respect of the matter under subsection 30(4) of this Act before that day.

15In other words, on or after April 3, 2019 (the day section 23 of Schedule 13 to the Safe and Supportive Classrooms Act, 2019 came into force), the mandatory penalty provisions in section 30.2 as amended apply to a finding of “sexual abuse” where the sexual abuse pre-dated the April 3, 2019 amendment so long as the panel has not yet made an order under section 30(4) of the Act.

16Prior to the April 3, 2019 amendment, subsections 30.2(1) and (2) provided:

Orders relating to sexual abuse and child pornography

30.2 (1) Where, under section 30, the Discipline Committee finds a member guilty of an act of professional misconduct consisting of, or including, sexual abuse of a student or a prohibited act involving child pornography, the Committee shall, in addition to anything else the Committee may do under subsection 30 (5),

(a) make an order requiring that the member be reprimanded by the Committee;

(b) if the act of professional misconduct did not consist of, or include, an act listed in subsection (2) and the Discipline Committee has not otherwise made an order revoking the member’s certificate, make an order directing the Registrar to suspend the member’s certificate; and

(c) if the act of professional misconduct consisted of, or included, an act listed in subsection (2),

(i) make an interim order directing the Registrar to suspend the member’s certificate until the Committee makes an order under subclause (ii), and

(ii) make an order directing the Registrar to revoke the member’s certificate.

Same

(2) The acts of professional misconduct referred to in subsection (1) are the following:

1. Sexual abuse of a student, if the sexual abuse consisted of, or included, any of the following:

i. Sexual intercourse.

ii. Genital to genital, genital to anal, oral to genital, or oral to anal contact.

iii. Masturbation of the member by, or in the presence of, the student.

iv. Masturbation of the student by the member.

v. Encouragement of the student by the member to masturbate in the presence of the member.

vi. Touching of a sexual nature of the student’s genitals, anus, breasts or buttocks.

vii. Other conduct of a sexual nature prescribed by regulations made under clause 42 (1) (c.1).

2. A prohibited act involving child pornography.

17Accordingly, the former section 30.2(2) limited the definition of “sexual abuse” in subsection 30.2(1) to a specific listing of enumerated acts.

18It is important to note that the Panel’s oral (December 7, 2018) and written (March 25, 2019) decisions on finding pre-date the April 3, 2019 amendment and hence the former section 30.2 applied at that time. The Panel was unable to conclude that one of the enumerated forms of sexual abuse in subsection 30.2(2) occurred and hence did not issue an interim suspension order against the Member.

19Section 30.2 in its current form became law effective April 3, 2019. Subsections 30.2(1) and (2) currently provide:

Orders relating to sexual abuse, child pornography, etc.

30.2 (1) If, under section 30, the Discipline Committee finds a member guilty of an act of professional misconduct consisting of or including an act listed in subsection (2) of this section, the Committee shall, in addition to anything else the Committee may do under subsection 30 (5),

(a) make an order requiring that the member be reprimanded by the Committee;

(b) make an interim order directing the Registrar to suspend the member’s certificate of qualification and registration until the Committee makes an order under clause (c); and

(c) make an order directing the Registrar to revoke the member’s certificate of qualification and registration.

Same

(2) The acts of professional misconduct referred to in subsection (1) are the following:

1. Sexual abuse of a student.

2. A prohibited act involving child pornography.

3. A prescribed sexual act.

20The term “sexual abuse” is no longer defined or limited within section 30.2. In section 1 of the Act, “sexual abuse” is defined as follows:

“sexual abuse” of a student by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the student,

(b) touching, of a sexual nature, of the student by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the student.

21This definition is broader than the previous subsection 30.2(2) enumerated acts. While the Member’s conduct did not fall within the enumerated acts, it does fall within the ambit of the broader section 1 definition. The Panel found the Member sexually abused Student 1 and Student 2, contrary to subsection 1(7.3) of Ontario Regulation 437/97, and that this sexual abuse met the section 1 definition under the Act. In its Decision on Finding and Reasons for Decision¹, the Panel stated:

The Committee found that the Member engaged in unspecified sexual activity with Student 1 while they were alone on a camping trip in May 2016. By allowing Student 1 to take a photograph of her exposed breasts, the member engaged in behaviour of a sexual nature towards Student 1. The Committee also finds that there was inappropriate physical sexual touching of Student 2 by the Member at the end of January or beginning of February 2017. The Member’s unacceptable conduct clearly meets the definition of sexual abuse set out [in section 1] in the Act.

22As the penalty hearing took place after the April 3, 2019 amendment, section 30.2 in its current form, with the broader definition of “sexual abuse”, applies and, since the Panel has not made a prior order under subsection 30(4), the mandatory penalties are engaged.

23The Member’s professional misconduct consisted of or included the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders. The Panel notes that it has no discretion in this regard and denounces the Member’s misconduct in the strongest terms.

D. COSTS SUBMISSIONS OF COLLEGE COUNSEL

24College Counsel requested costs of the proceeding in the amount of $20,000 under Rule 16 and Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

25College Counsel relied upon the following decisions: Ontario College of Teachers v. Hall, 2019 ONOCT 20; Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56; Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28; Ontario College of Teachers v. Williamson, 2017 ONOCT 20; and Ontario College of Teachers v. Armstrong, 2019 ONOCT 49.

26He argued that the Panel ought to order these costs because: 1) the Member was completely uncooperative with the College despite many communications prior to both hearing dates; 2) she was warned of the costs consequences; 3) the case was challenging and complex because the students were boarders who now live outside Canada; 4) the College was put to the time and expense of bringing a police officer to testify at the hearing on finding and review the videotape evidence to distill the Member’s admissions, and then the time and expense of the subsequent penalty hearing; 5) in light of her admissions during the second videotaped police interview, it would have been reasonable for the Member to make the same admissions before the College and save great time and expense; 6) the College was entirely successful in proving all allegations; and 7) there is no evidence the Member is impecunious.

E. decision on costs

27On December 4, 2019, the Panel made the following order as to costs:

1. The Member shall pay the College costs of the proceeding in the amount of $20,000 within six months of the date of this Order.

F. reasons for costs

28In accordance with section 30(5)4 of the Act, Rule 16 and the factors in the Hall decision, the Panel finds it appropriate to make a costs award in this proceeding.

29In exercising its discretion to order costs, the Panel recognizes that a costs award is compensatory rather than punitive in nature. However, the Member’s conduct during the course of the disciplinary process is relevant, as uncooperative or vexatious conduct can lengthen the duration of the proceedings and increase the expense to the College. The Member refused to engage in a meaningful way with the disciplinary process. She failed to respond to College Counsel’s communications. The College was required to call a witness and prove its case over the course of a one-day hearing on finding and then attend on a second day for penalty submissions. While the Member previously made admissions during the course of her second police interview, she was not obliged to admit her misconduct in the College’s proceeding as she had the right to defend herself and put the College to its burden of proof. The Member did not attend the hearings on finding or penalty, and did not present a defence for the Panel’s consideration. The College was successful in proving all allegations. The length and complexity of the proceedings warrant a significant costs award. The College is not required to show that the Member is able to pay the award in the absence of evidence from the Member that she is unable to pay.

30Rule 16.05(3) provides that the College need not prove the cost or expense of a hearing day if the request is equal to or less than the amount set out in Tariff A of $10,000 per day. College Counsel requested $20,000 in accordance with Tariff A as the proceeding required two hearing days. The Panel finds this amount to be appropriate.

Footnotes

1. 1Ontario College of Teachers v. Wilson, 2019 ONOCT 25 at p. 11.