Ontario College of Teachers v Marquis 2020 ONOCT 164

Date: 2020-06-02

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

Walter Ian Marquis, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

WALTER IAN MARQUIS (REGISTRATION #449426)

PANEL: Mary Ellen Gucciardi, OCT, Chair

Marlène Marwah

Nicola Powadiuk, OCT

HEARD: June 1, 2020

Zirka Jakibchuk, for the Ontario College of Teachers

Patricia D’Heureux, for Walter Ian Marquis

Julie Maciura, 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 June 1, 2020 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded by way of an electronic hearing.

2Walter Ian Marquis (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 18, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Walter Ian Marquis 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) 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);

(d) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(e) he contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(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);¹ and

(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:

Walter Ian Marquis is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a Librarian/Special Education Resource Teacher at [XXX]School (the “School”) in Scarborough, Ontario.
At all material times, Student 1 was a Grade [XXX] student at the School.
On May 15, 2015, the Member made inappropriate physical contact with Student 1, after Student 1 failed to pick up a ball, as directed, when lining up to re-enter the School after recess. The Member’s conduct involved, out of frustration and without prior warning, physically lifting Student 1 off the ground.
On or about June 15, 2015, the Member was charged with assault on Student 1, contrary to section 266 of the Criminal Code (Canada).
On July 17, 2015, the Children’s Aid Society of Toronto (“CAS”) verified concerns regarding the Member’s conduct toward Student 1. On the advice of his legal counsel, the Member opted not to respond or provide any input to the CAS investigation given the then outstanding criminal proceeding.
On June 24, 2016, the Member was found guilty of assault on Student 1.
On August 4, 2016, the Member was granted an absolute discharge. In his Reasons for Sentence, the Judge stated that the evidence demonstrated that, “[The Member] went over to [the Student], picked him up from behind by placing his hands under his arms; he lifted him a very short distance off the ground and immediately set him back down on his feet. …”
The Member did not appeal the criminal finding of guilt and/or the sentence.
Attached hereto and marked as Appendix “B” is a copy of Court Information, Appearances and Disposition with respect to the assault charge.
Attached hereto and marked as Appendix “C” is a certified copy of the transcript of the Reasons for Judgment of the Honourable Justice T. Cleary on June 24, 2016.
Attached hereto and marked as Appendix “D” is a certified copy of the transcript of the Reasons for Sentence of the Honourable Justice T. Cleary on August 4, 2016.
Following the incident described in paragraph 4 above, the Member voluntarily completed a three-day course in Classroom Management course delivered by the Elementary Teachers’ Federation of Ontario (“ETFO”) between July 19 and 21, 2016. Attached hereto and marked as Appendix “E” is a copy of the certificate of completion issued by the course provider.
The Member also voluntarily completed one-day Boundaries Training delivered by ETFO on October 21, 2016. Attached hereto and marked as Appendix “F” is a copy of the certificate of completion issued by the course provider.
After completing its investigation, the Board substantiated the inappropriate physical contact with Student 1, suspended the Member without pay for a period of 10 days and administratively transferred him to another school. Following a grievance brought by the Member’s federation, the suspension was reduced to 5 days. Attached hereto and marked as Appendix “G” is a copy of the Board’s revised discipline letter dated September 19, 2018.
Prior to the conduct described at paragraph 4 above, the Board had not reported any concerns or discipline relating to the Member to the College and the Member had no discipline record at the College. The Member returned to teaching with his Board following the resolution of the criminal matter and related Board investigation and has continued to teach for the Board since that time.

PLEA OF NO CONTEST

By this document, the Member does not contest the truth and accuracy of the facts and appendices referred to in paragraphs 1-16 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 437/97 subsections 1(5), 1(7.1), 1(15), 1(16), 1(17), 1(18 – unprofessional only) and 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 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 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.

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 the plea of no contest, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct

D. DECISION

6At the outset of the hearing, counsel for the College requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable) with respect to subsection 1(18) of Ontario Regulation 437/97. This request was being sought as a by-product of negotiations in the adversarial process that resulted in the Statement of Uncontested Facts and Plea of No Contest. The Panel granted this request.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on June 1, 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), 1(15), 1(16), 1(17), 1(18) [unprofessional only] and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 16 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. The Uncontested Facts demonstrate that on May 15, 2015, the Member became frustrated with Student 1 – a grade [XXX] student who was not putting his ball away when lining up to re-enter the School after recess. As a response to this frustration, the Member lifted Student 1 off the ground and put him back down. Approximately one year following the incident, the Member was found guilty of assault as a result of his actions.

9The Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The ethical standard of “Care” requires members to express their commitment to students’ well-being through using professional judgment and empathy. Further, the ethical standard of “Respect” requires members to honour the human dignity of their students. The Member failed to appropriately use his professional judgment when he lifted up Student 1 and therefore he failed to maintain the ethical standards of “Care” and “Respect”.

10The Member’s conduct constitutes physical abuse of Student 1 contrary to subsection 1(7.1) of Ontario Regulation 437/97. The Member lifted Student 1 up off the ground as a discipline measure. It was entirely inappropriate for the Member to behave in this way. Members of the profession are expected to remain composed and professional in their dealings with students and must not resort to the inappropriate use of physical force against students.

11The Member’s conduct breached section 264(1) of the Education Act, which sets out the duties of a teacher. Teachers must maintain proper order and discipline on school grounds. The Member’s rough behaviour with Student 1 was at odds with his duties as a teacher. The Member ought to have communicated effectively with the student rather than resorting to physical contact.

12The fact that the Member was found guilty of assault of Student 1 demonstrates that the Member contravened a law relevant to his suitability to hold a certificate of qualification and registration, and which has caused a student under the Member’s supervision to be put at risk contrary to subsections 1(16) and 1(17) of Ontario Regulation 437/97.

13By lifting Student 1 off the ground for not following his directions, the Member was unprofessional and acted contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to exercise good judgment and compassion for students and not to resort to unprofessional methods of discipline out of frustration.

14The Member’s conduct towards Student 1 was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97, in that it undermined the reputation of the teaching profession and the trust that the public places in members.

F. PENALTY Decision

15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on June 1, 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 via video conference, 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, and limitations on the Member’s Certificate of Qualification and Registration, and the fact of such terms, conditions, or limitations is to be recorded on the Register until such time as they are fulfilled:

(a) the Member shall enrol in and successfully complete at his own expense, a course of instruction, approved by the Registrar, regarding classroom management. The Committee recognizes and accepts that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee;

(b) the Member shall provide to the Registrar a written certificate from the course provider stating that the Member has successfully completed the course. The Committee recognizes and accepts that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee.

G. REASONS FOR PENALTY DECISION

16The 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. Stodola, 2018 ONOCT 22, Ontario College of Teachers v. Lolli, 2017 ONOCT 87, and Ontario College of Teachers v. Snyder, 2019 ONOCT 86. In these cases, members were found to have made inappropriate physical contact with students while attempting to manage student behaviour.

17The Panel considered the Member’s circumstances in comparison to the cases provided. Overall, the Member’s misconduct in this case was either similar to or less serious than the misconduct in the cases provided. There are a number of mitigating factors in the Member’s case. First, the physical contact made by the Member was very brief and the student did not suffer any physical injury as a result of the conduct. Additionally, the Member did not contest the misconduct, saving the time and expense of a contested hearing. Following the Member being found guilty of assault, he received an absolute discharge. He also voluntarily completed two courses – one in classroom management and one in boundaries training. Finally, the Member has not been the subject of discipline prior to this incident and has not had any disciplinary issues since. After considering these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s conduct warrants a reprimand by his peers. Members are expected to create a safe and supportive learning environment for their students, and not to let their frustration with students get the better of them. The Member failed to do so by his misconduct. 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.

19The Panel takes note that the Member has completed a classroom management course and a boundaries training course of his own volition. If the Member had not done so, it would have been appropriate for the Panel to order that the Member complete this course prior to returning to teaching. The Panel finds that this course has assisted in the rehabilitation of the Member and that no further coursework is required. The coursework has reminded the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: June 2, 2020

Mary Ellen Gucciardi, OCT

Chair, Discipline Panel