DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Davidson 2020 ONOCT 169

Date: 2020-06-22

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

Mark Alexander Simon Davidson, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARK ALEXANDER SIMON DAVIDSON (REGISTRATION #280027)

PANEL: Jonathan Rose, Chair Mary Ellen Gucciardi, OCT John Hamilton, OCT

HEARD: June 17, 2020

Christine Lonsdale and Vincent DeMarco for the Ontario College of Teachers

Kirsty Niglas-Collins for Mark Alexander Simon Davidson

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 June 17, 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.

2Mark Alexander Simon Davidson (the “Member”) did not attend the hearing but appeared via videoconference to receive his reprimand. He had legal representation throughout the hearing. 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 May 22, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Mark Alexander Simon Davidson 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 physically, contrary to Ontario Regulation 427/97 [sic], subsection 1(7.1);²

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;³

(e) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(f) 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);

(g) he committed an act or 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

(h) 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. Mark Alexander Simon Davidson 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.

2. At all material times, the Member was employed by the Halton District School Board (the “Board”) as a special needs teacher at [XXX]School (the “School”).

3. At all material times, Student 1 was a Grade [XXX] female student who assisted in the Member’s [XXX]class. At all material times, Student 2 and Student 3 were female students who assisted in the Member’s [XXX]class. At all material times, Student 4 was a female[XXX].

4. At all material times, Person A was a former female student who visited and worked in the Member’s [XXX]class. At all material times, Person B and Person C were female Educational Assistants in the Member’s [XXX]class.

Inappropriate Conduct in 2012

5. During the 2011-2012 academic year, Student 1 was paid to work in the Member’s [XXX]class while she was still a Grade [XXX] student at the school. Student 1 would work with the Educational Assistants, the Member, and other teaching staff in the class.

6. During this time, Student 1 suffered from [XXX]and[XXX]. On certain occasions, Student 1 would sleep in and at times miss her shifts in the Member’s class. When the Member discovered this, he told Student 1: “I have [XXX]too, so you can talk to me.”

7. The Member asked Student 1 for her phone number. The Member then sent the following text messages to Student 1:

(a) “Hope to see you today”;

(b) “Hope you are coming”.

8. Student 1 would [XXX]by [XXX]herself. Student 1 did not share with the Member that she engaged in [XXX]behaviour. The Member gave Student 1 a card in which he wrote: “Congratulations on 100 [XXX]free days!”. On a separate occasion, the Member also gave Student 1 [XXX]for her [XXX]as a gift. On a different occasion, the Member approached Student 1 in the hallway of the School and stated: “I hope you will come to work in the centre”. These actions by the Member made Student 1 uncomfortable.

9. Student 4 was working in the Member’s class and had lip balm sticking out of the back pocket of her pants. The Member approached Student 4 and pushed the lip balm into her back pocket. This action made Student 4 uncomfortable.

10. Person A, while a student at university, came back to assist in the Member’s class during the 2011-2012 school year. The Member texted Person A and asked if she was going to come back to work in his class in the spring. Over Christmas, the Member left Person A a voicemail asking if she wanted to go out to get dim sum with him. These actions by the Member made Person A uncomfortable.

11. The Board conducted an investigation. The Member received a one-day suspension and was required to attend further training on maintaining professional boundaries with students and staff. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated June 18, 2012.

Inappropriate Conduct in 2014

12. During the 2013-2014 academic year, the Member would talk about his personal life with the students working in his class. The Member spoke about not having a girlfriend, his friends, his neighbours, and his landlord. The Member would also ask the students about their personal lives.

13. The Member would make inappropriate jokes during class. The Member would also comment on the weight of student supervisors in his [XXX]class, as well as his own weight.

14. Student 2 worked as a lunchroom student supervisor in the Member’s [XXX]class. The Member would text students working in his class about shifts and whether they would be able to come in.

15. The Member would offer food to student supervisors working in his special needs class. In April of 2014, the Member texted Student 2: “Come see me tomorrow, I have a spicy noodle dish for you to try.” On one occasion, the Member offered some of his lunch to Student 2. The Member told Student 2 that she had to try it because she “said [she] liked spice.” The Member would also comment on the appearance and clothing of the student supervisors working in his [XXX]class. The Member made comments to Student 2 such as “you look nice today” and “that skirt is nice”. Student 2 felt uncomfortable as a result of these actions by the Member.

16. Student 3 worked as a lunchroom student supervisor in the Member’s [XXX]class. The Member texted Student 3 stating that he had heard that she was a slacker. Student 3 was uncomfortable as a result of this comment by the Member.

17. During the 2013-2014 academic year, the Member organized a [XXX]tournament at another school. Student supervisors attended the tournament to assist the Member and the teaching staff. Student 3 and another student drove to this tournament in Student 3’s car. After the [XXX]tournament had finished and as Student 3 and the other student were getting into Student 3’s car to leave, the Member got into the back seat and asked for a ride home. The Member did not ask for permission to enter the vehicle. Student 3 and her friend felt as if they could not refuse to drive the Member. While driving, the Member gave Student 3 and the other student directions to his friend’s house. The Member told the students that he was going to pick up some money. The students dropped off the Member, who went inside. After a few minutes, the Member came back to the car and gave the students further directions about where to drop off him off. Student 3 was uncomfortable during this incident.

18. The Member permitted Student 2, Student 3 and other students to sign in for shifts as student supervisors in his [XXX]class when they were absent from the class. This resulted in student supervisors being paid by the School for time that they did not work.

19. The Board conducted an investigation. The Member received a five day suspension and was relieved of his responsibility to schedule student supervisors. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter to the Member dated May 14, 2014.

Inappropriate Conduct in 2016:

20. During the 2015-2016 academic year, the Member raised his voice at staff members at the School.

Inappropriate Interactions with Person B:

21. During the second semester of the 2015-2016 academic year, the Member had the following interactions with Person B:

(a) On or about February 5, 2016, the Member made repeated unwanted physical contact with Person B by poking her in the side and tickling her neck and stomach;

(b) On or about February 25, 2016, the Member walked out of the School with Person B and asked to go with her to lunch;

(c) On or about February 26, 2016, the Member asked Person B to see a movie with him, which she declined;

(d) On or about March 2, 2016, the Member approached Person B and hugged her without asking;

(e) On or about March 3, 2016, the Member asked Person B if she needed a massage and told her that he had a massage table in his apartment;

(f) In or around February and March of 2016, the Member poked Person B and tugged at her shirt.

22. During the 2015-2016 academic year, the Member asked Person B for her phone number so that he could call her if he needed something for work. From March – April of 2016, the Member sent the following messages to Person B:

(a) “Feeling better thx. How r u. Or is my sexy beard to much for u to handle so u needed a day off to cool down so u don’t jump me at school lol”;

(b) “Just tried out the new massage table. It’s nice. Should I leave it up and u can swing by tonight.”;

(c) “U can wipe me down lol”;

(d) “Ok. What are u doing in the afternoon say after 3. Wanna go over budget and hang out”.

Attached hereto and marked as Exhibit “D” is a copy of these text messages.

23. The Member would refer to certain female staff using nicknames with sexual connotations. The Member called Person B “huge ass.”

24. The Member’s attention to Person B was unwanted. The Member’s interactions with Person B during the 2015-2016 academic year made Person B fear for her safety.

Inappropriate Interactions with Person C:

25. On or about March 2, 2016, the Member asked Person C for her phone number. While asking for her phone number, the Member took his phone out which made Person C feel pressured and uncomfortable.

26. On or about March 3, 2016, the Member poked and tickled the sides of Person C. The Member would call Person C “Sexy S.” The Member asked Person C to go out with him alone and in groups. When the Member asked Person C to go out with him by herself, she declined.

27. The Board conducted an investigation. The Member received a 15 day unpaid suspension, was required to attend anger management training, and was administratively transferred to another school. Attached hereto and marked as Exhibit “E” is a copy of the Board’s letters to the Member dated April 15 and April 18, 2016.

Prior History with the Board:

28. In addition to the incidents described above from 2012-2016, there were findings of a similar nature made against the Member in 2004, 2005, and 2007. The Member was required to complete boundaries training in 2005. Attached hereto and marked as Exhibit “F” are copies of the Board’s letters to the Member dated October 19, 2004, December 7, 2005, and June 21, 2007 respectively.

Post-2016 Conduct

29. From 2016-2020 the Member remained an employee of the Board. During this time, the Member received no further formal discipline from the Board. No further incidents have been reported to the College. The Member retired from his position with the Board in June 2020.

GUILTY PLEA

30. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

31. 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(7.2), 1(14), 1(15), 1(18), and 1(19).

32. 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 otherwise 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 him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

33. In light of the Admitted Facts and the circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(7.1) and 1(7.3) of Ontario Regulation 437/97 and that the Member engaged in sexual abuse of a student as defined in section 1 of the Act, be withdrawn. With respect to subsection 1(5), College Counsel submitted that proceeding under both subsections 1(5) and 1(14) would be duplicative based on the facts outlined in the Agreed Statement of Facts and Guilty Plea. As such, College Counsel requested that allegations relating to subsection 1(5) be withdrawn. College Counsel also requested that subsections 1(7.1) and 1(7.3) (and the sexual abuse allegation in relation to section 1 of the Act) be withdrawn given that the evidence before the Panel was insufficient to prove these allegations. College Counsel further stated that the Panel’s permission to withdraw these allegations was being sought as a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. The Panel granted these requests.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on June 17, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 29 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 engaged in a pattern of inappropriate comments and behaviour towards students and colleagues.

9The Panel finds that the Member abused students psychologically or emotionally contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member’s behaviour made several students feel uncomfortable. For instance, Student 1, who was suffering from [XXX]and[XXX], did not share with the Member that she engaged in [XXX]behaviour. Nevertheless, the Member gave her a card in which he wrote: “Congratulations on 100 [XXX]free days!” and gave her a [XXX]for her [XXX]as a gift. The Member’s communications and gift made Student 1 feel uncomfortable and were psychologically or emotionally abusive. The Member made Student 2 feel uncomfortable by, among other things, commenting about her appearance. The Member made Student 3 feel uncomfortable by, among other things, getting into her car without her permission and asking for a ride home. The Member made Student 4 feel uncomfortable by pushing lip balm into the back pocket of her pants. Teachers hold a position of trust and are expected to conduct themselves in a way that fosters the well-being of students. The Member’s inappropriate behaviour was psychologically or emotionally abusive in that he held a position of authority over them and behaved in a way that made them feel uncomfortable.

10The Panel finds that the Member contravened subsection 1(14) of Ontario Regulation 437/97 by failing to comply with the Ethical Standards for the Teaching Profession of integrity, care and respect. The Member encouraged dishonest behaviour among students by allowing them to sign and get paid for shifts as student supervisors in his class that they did not actually work. This behaviour demonstrated the Member’s lack of integrity. He furthermore made inappropriate comments about the weight, appearance and clothing of student supervisors in his [XXX]class such as commenting on the skirt of Student 2 and texting Student 3 about her being a “slacker”. This behaviour demonstrated a lack of care and respect toward his students. Members are expected to promote the well-being of students through positive influence, professional judgment and empathy in practice. The Member did not meet the ethical standards to which members of the profession are held.

11The Panel finds that the Member failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Section 264(1) sets out the duties of a teacher and section 264(1)(c) is commonly understood to mean that teachers must act as positive role models. The Member’s conduct was at odds with his duties as a teacher. He encouraged dishonest behaviour as set out above, he made demeaning comments about students, and he made students feel uncomfortable. Section 264(1)(d) requires teachers to cooperate with their colleagues. The Member, however, raised his voice at staff members at the School and sexually harassed female colleagues. This type of behaviour poisons the work environment and certainly does not foster a cooperative and collaborative workplace, as the Education Act requires.

12The Member’s conduct was disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member engaged in a concerning pattern of inappropriate behaviour towards students and colleagues, despite having received prior sanction from his Board. He made inappropriate comments about the appearance of students, pushed lip balm into the back pocket of Student 4 and raised his voice at colleagues. He also made unwanted advances toward colleagues, which made them feel uncomfortable. For instance, he poked and tickled female colleagues on their side, neck and stomach, hugged a female colleague without asking her, sent a female colleague unwanted and inappropriate text messages, and asked female colleagues to go out with him several times (which they declined). He also referred to female staff by nicknames that had a sexual connotation (e.g. “huge ass” and “Sexy S”). The Member’s unwanted advances made Person B fear for her safety. His behaviour was also a violation of his Board’s Discrimination and Harassment Administrative Procedure. The Member’s conduct demonstrated a persistent lack of professionalism, a failure to respect appropriate professional boundaries with his students and colleagues and is clearly disgraceful, dishonourable and unprofessional.

13Similarly, the Member’s conduct was unbecoming a member, contrary to Ontario section 1(19) of Ontario Regulation 437/97. The Member’s repeated breach of teacher-student boundaries and his sexual harassment of female colleagues undermined the reputation of the teaching profession and violated the trust that the public places 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 June 17, 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 or by videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 20 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.

3. 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) within 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding maintaining appropriate boundaries and subject to the following conditions:

(i) 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 and Reasons 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

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. MacDonald, 2019 ONOCT 104, and Ontario College of Teachers v. Béarez, 2019 ONOCT 17.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct, the repetitive nature of the misconduct despite prior discipline, which included Board-imposed suspensions and training on professional boundaries, the fact that he was in a position of power and that his actions were directed towards women. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and has not been the subject of discipline proceedings at the College in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s pattern of inappropriate conduct, despite prior warnings from the Board for similarly inappropriate behaviour, warrants a reprimand by his peers. Members are expected to serve as positive role models for students, which the Member failed to do by making inappropriate comments and engaging in inappropriate behaviour towards Students 1, 2, 3, 4 and Persons A, B and C. 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.

18Given the nature and severity of the Member’s conduct, the Panel finds that a 20-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 lengthy suspension is justified. The Member has a long history inappropriate conduct involving students and colleagues. He demonstrated a clear disregard for professional boundaries, he sexually harassed colleagues, and his behaviour made several students and colleagues feel uncomfortable. This type of behaviour is completely inappropriate for members of the teaching profession who hold a unique position of trust and authority. 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.

19The Panel finds that the course of instruction regarding maintaining appropriate boundaries 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 and colleagues.

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

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.