Ontario College of Teachers v Davis 2020 ONOCT 162

Date: 2020-02-14

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

Allan Wilfred Davis, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ALLAN WILFRED DAVIS (REGISTRATION #292186)

PANEL: Godwin Ifedi, Chair

Nicola Powadiuk, OCT

Stéphane Vallée, OCT

HEARD: February 5, 2020

Christine Wadsworth and Vincent DeMarco, for the Ontario College of Teachers

Sheilagh Turkington and Deborah Guterman, for Allan Wilfred Davis

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 5, 2020, at the Ontario College of Teachers (the “College”).

2Allan Wilfred Davis (the “Member”) attended the hearing via videoconference and had legal representation who attended in person. 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 February 9, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Allan Wilfred Davis is guilty of professional misconduct as defined in the Act in that:

(a) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to Section 13 of Regulation 63/55 made under the Teaching Profession Act, R.S.O. 1980, Ch. 495 and as amended thereafter (“TPA Regulation”);

(b) he failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

(c) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

(d) he failed to comply with Section 235(1)(c) of the Education Act, R.S.O. 1980, Ch. 129 and amendments thereto;

(e) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act

(f) 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);

(g) 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:

Allan Wilfred Davis is 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 with respect to the Member.
At all material times during the 1990-1991 academic year, the Member was employed by the Upper Grand District School Board, formerly known as the Wellington County Board of Education (the “Board”) as a grade [XXX] [XXX][XXX] teacher at [XXX] School (the “School”) in [XXX], Ontario.
During the academic year 1990-1991, Student 1 was a female student in the Member’s grade [XXX] class, and Student 2 was a male student in the Member’s grade [XXX] class.

Inappropriate Discipline of Students:

During the 1990-1991 academic year, the Member disciplined students in his class by making them stand on their desks with their arms outstretched like a cross. This pose was called “la Croix” or “the Cross.” The Member would sometimes force the students to hold textbooks in their hands while their arms were outstretched in this pose.
The Member forced Student 2 to do “the Cross” on several occasions during the 1990-1991 academic year. On one occasion when Student 2 was in “the Cross” pose, the Member pointed to Student 2’s crotch area and told the class to look at Student 2’s “boner.” The other students laughed at Student 2. Student 2 was humiliated.

Inappropriate and Demeaning Comments to Students:

During the 1990-1991 academic year, the Member made inappropriate and demeaning comments to students in his class, including:

(a) Referring to Student 1 as “[female name] Condom”;

(b) Indicating to students in the class that Student 1 smelled bad and fanning her in an attempt to illustrate this point;

Inappropriate Classroom Games:

During the 1990-1991 academic year, the Member permitted his students to play a “spin-the-bottle” kissing game in the classroom.
During the 1990-1991 academic year, the Member permitted his students to go into a closet in the classroom where they would kiss. This was referred to as the “kissing closet.”

Encouraging Rivalry between [XXX] and [XXX] Students:

At the School during the 1990-1991 academic year, there was an “[XXX]” where students were taught in [XXX], and a “[XXX],” where students were taught in [XXX]. The Member’s [XXX] class was part of the “[XXX].”
During the 1990-1991 academic year, the Member encouraged animosity and a rivalry between his [XXX] students and the [XXX] students. The Member encouraged students in his [XXX] class to think of themselves as superior to students in the “[XXX]” at the School. The Member encouraged his students not to associate, play, or socialize with students in the “[XXX].” The Member made demeaning comments about the “[XXX]” students.

Inappropriate Gesture:

During the 1990-1991 academic year, the Member belittled a colleague in front of his students by giving the colleague “the finger” behind her back.

Board Resignation:

On or about August 31, 1991, the Member resigned from the Board.

PLEA OF NO CONTEST

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”).
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 63/55 made pursuant to the Teaching Profession Act RSO 1980, Ch. 495 subsections 13, 14(d), 14(f); the Education Act RSO 1980, Ch. 129 subsection 235(1)(c); and, Ontario Regulation 437/97 subsections 1(7) (physical, verbal, psychological or emotional abuse), 1(18), 1(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 Statement of 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.

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.
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

6College Counsel requested that the allegation that the Member breached subsection 1(7) of Ontario Regulation 437/97 (pre-May 2008 amendments to the Act) be narrowed to include only physical, verbal and psychological or emotional abuse, but not sexual abuse. College Counsel further requested that the Panel not make a finding that the Member engaged in sexual abuse of a student or students as defined in section 1 of the Act. College Counsel stated that there was insufficient evidence before the Panel to prove the allegation of sexual abuse. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on February 5, 2020, finding that the Member engaged in acts of professional misconduct as alleged, contrary to subsections 13, 14(d) and 14(f) of the TPA Regulation, subsection 235(1)(c) of the Education Act, R.S.O. 1980, c. 129, and subsections 1(7) [physical, verbal, psychological or emotional abuse], 1(18) and 1(19) of Ontario Regulation 437/97.

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.

9The Member breached subsection 13 of the TPA Regulation, which required members to “strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession.” Among other things, the Member humiliated Student 2 by forcing him to stand on his desk in the “Cross” pose and by pointing out his crotch area to the class. This conduct is completely at odds with the notion of upholding the honour, dignity and ethical standards of the profession.

10The Member breached subsection 14(d) of the TPA Regulation, which required members to show “consistent justice and consideration” in all their relations with students. The Member made a number of inappropriate, demeaning and inconsiderate comments to students, contrary to his obligations under this provision. For instance, he referred to Student 1 as a “[female name] condom”, he told her that she smelled bad, and he fanned her in front of other students to illustrate his point.

11Similarly, the Member breached subsection 14(f) of the TPA Regulation, which required members to show concern for the welfare of students under their care. By repeatedly demeaning, embarrassing and insulting his students, the member showed a total disregard for their wellbeing.

12The Member failed to comply with section 235(1)(c) of the Education Act, 1980, in that he failed to act as an appropriate role model. The Member allowed his students to play kissing games in his classroom, he encouraged student rivalries between [XXX] and [XXX] students, and he belittled a colleague by giving her “the finger” behind her back, but in front of students. This type of behaviour is inconsistent with the duties of a teacher.

13The Member abused students physically, verbally and psychologically or emotionally, contrary subsection 1(7) of Ontario Regulation 437/97 (pre-May 2008 amendments to the Act). The Member humiliated Student 2 and told him that he would not amount to anything more than a garbage truck driver, he told Student 1 that she smelled bad and he fanned her in front of other students, and he inappropriate disciplined students by making them stand on their desks in the “Cross” pose, sometimes holding textbooks in their outstretched arms. This conduct was physically, verbally and psychologically or emotionally abusive. Teachers hold a unique position of trust and authority, and it is unacceptable for them to abuse this trusted position by making students feel uncomfortable.

14The Member’s conduct was disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. His inappropriate discipline of students, which included pointing out the crotch of a student to the class, and his demeaning comments made to students were disgraceful, dishonourable and unprofessional. It was also unprofessional for the Member to allow his students to play kissing games in his classroom, to encourage student rivalries, and to belittle a colleague in front of students. Through his repeated conduct, the Member demonstrated a concerning lack of professional judgment.

15Finally, the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member’s immature and demeaning conduct undermined the reputation of the teaching profession and the public’s trust that is placed in members of the profession.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 5, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered via video conference at the offices of the Ontario College of Teachers, 101 Bloor St. 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 of the Ontario College of Teachers (the “Registrar”) is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the 15^th calendar day following the date of the oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;
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 a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding professional boundaries 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, Reasons for Decision and Order 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

17The 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 College Counsel: Ontario College of Teachers v. Green-Johnson, 2018 ONOCT 30, Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28, Ontario College of Teachers v. Gray, 2017 ONOCT 104, and Ontario College of Teachers v. Mate, 2018 ONOCT 65.

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the multiple incidents involving students and a colleague and the humiliating experience which Students 1 and 2 endured. In terms of mitigating factors, the Member pleaded no contest to the allegations of misconduct, saving the time and expense of a contested hearing and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. Members are expected to serve as positive role models for students and to prioritize the wellbeing of students. The Member failed to meet 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.

20Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. 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 a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

21The Panel finds that the courses of instruction regarding professional boundaries 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.

22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: February 14, 2020

Godwin Ifedi

Chair, Discipline Panel