DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Giannias 2020 ONOCT 172

Date: 2020-07-23

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

Nikolaos Giannias, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NIKOLAOS GIANNIAS (REGISTRATION #472310)

PANEL: John Hamilton, OCT, Chair Irene Dembek, OCT Tom Potter

HEARD: July 21, 2020

Christine Wadsworth, for the Ontario College of Teachers Philip Abbink, for Nikolaos Giannias 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 July 21, 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.

2Nikolaos Giannias (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 August 20, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Nikolaos Giannias 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 failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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);²

(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).

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:

1. The Member 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 Toronto District School Board as a teacher at [XXX] Institute (the “School”).

3. On October 28, 2014 the Member published a book called Teacher Shock: Education in Canada. The book was published under his own name. It was available for sale to the public.

4. The Member chose as his subjects, real persons with whom he worked. The individuals and the Member’s employer were identifiable to the Members of the public by virtue of the details contained in the book, although their real names were not used. More specifically, the Member’s book Teacher Shock: Education in Canada contained:

(a) false and derogatory comments about one or more colleagues concerning their professional activities;

(b) made false and derogatory comments about his employer and/or the professional activities of one or more colleague on social media;

(c) made false and/or derogatory comments about the professional activities of one or more colleagues or former colleagues.

Attached hereto and marked as Exhibit “B” are various media postings of the Member.

5. The following are extracts of passages from the Member’s e-book Teacher Shock: Education in Canada:

“The interview was conducted by a Principal, a Vice-Principal, and I noticed a quite heavy blonde man sitting next to the two administrators that was introduced to me as the CL or curriculum leader of the English department I would be working in during my LTO duration.”

“Peter went on to tell me how the ‘stupid cops’ had him handcuffed and he blew into the breathalyzer machine. Apparently he was three times over the legal limit!”

“HOMO WHAT? FUCK THE HOMOS NICK! They’re all sickos.”

“Peter looked at me and said, ‘That prick is only a Principal because he’s a minority. The board is promoting those folks because we’re a multicultural board now and you need those people at the positions of administration. White men like you and I are screwed Niko!”

“I unlocked the book room door and as I walked behind the dusty stalks, I saw something that I wish I had never seen. [She] had Peter’s penis in her mouth.”

6. The Member in a blog entitled Teacher Shock Disclaimer, posted January 25, 2016 states, “In writing this book, I hoped to shed light on the teaching profession as I experienced it during my years of teaching. I have tried to recreate events, locales and conversations from my memories of them. In order to maintain their anonymity in some instances I have changed the names of individuals and places, I may have changed some identifying characteristics and details such as physical properties, places of residence and locales. In particular with the character, the Belt man, I have embellished my conversation with him and how he dealt with his criminal charges.” Attached hereto and marked as Exhibit “C” is a copy of the Member’s blog dated January 25, 2016. The steps taken by the Member were not sufficient to protect the identity of his colleagues and employer.

PLEA OF NO CONTEST

7. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 to 6 above (the “Uncontested Facts”).

8. 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(14), 1(15), 1(18), and 1(19).

9. 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 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.

10. 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.

11. 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

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(16) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought because it was duplicative of the allegation under subsection 1(14). College Counsel further requested the Panel’s permission to withdraw the subsection 1(16) allegation as there was no reasonable prospect of a finding under this subsection because the Member did not contravene a law relevant to his suitability to hold a teaching certificate. The Panel granted these requests.

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 July 21, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 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 Uncontested Facts demonstrate that the Member published a book for sale to the public and wrote online blog posts that included false and derogatory comments about colleagues and his employer, which portrayed them in offensive ways. Though the Member did not use real names in his book, he discussed real persons and wrote in details that could lead readers to identify the persons discussed.

10The Panel found that the Member’s statements in his book and blog posts breached subsection 1(14) of Ontario Regulation 437/97, by failing to meet the standards of “Trust”, “Respect” and “Integrity” codified in the Ethical Standards for the Teaching Profession at section 32 of the College Bylaws. Teachers are expected to maintain honesty in their professional relationships (“Trust”), to be fair-minded in what they communicate (“Respect”), and to demonstrate reliability and moral action as members of the profession (“Integrity”). By making derogatory and false comments about colleagues, administrators and his employer online and in his book, the Member’s conduct fell below the ethical standards of trust, respect and integrity to which teachers are held.

11The Member’s behaviour also contravened subsection 1(15) of Ontario Regulation 437/97 by breaching section 264(1)(c) of the Education Act, which sets out the duties of a teacher. Among other things, teachers are expected to model appropriate behaviour. A teacher’s conduct both inside and outside the classroom is relevant to this duty. The Member’s comments were not only derogatory, but they also included false statements that could identify and tarnish the reputation of his colleagues. The way in which the Member raised concerns about his school environment showed a disregard for the virtues of truth and loyalty that are set out at section 264(1)(c) of the Education Act.

12Writing and publicizing false and derogatory comments about teachers’ professional activities and depicting colleagues, administrators and his employer in disparaging and offensive ways, demonstrates poor professional judgment by the Member. This conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97.

13Similarly, by making false and derogatory comments about members of his school community, the Member undermined the public’s confidence in the teaching profession generally, and in his school community in particular. This conduct was unbecoming a member of the profession, contrary to subsection 1(19) of Ontario Regulation 437/97.

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 July 21, 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 by videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the 15th 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. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1, 2020;

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 180 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 ethics and communication 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 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. Charette, 2018 ONOCT 32, Ontario College of Teachers v. O’Shea, 2016 ONOCT 84 and 2017 ONOCT 8, and Ontario College of Teachers v. Tremblay, 2015 ONOCT 80.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is the objectionable nature of the representations that the Member made about other members of the teaching profession and about the education system as a whole. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing; his conduct did not directly involve students; and he 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.

17The Panel find that the Member’s conduct warrants a reprimand by his peers. In his book, the Member made highly critical and damaging comments about the professional activities of his colleagues. By publishing false and derogatory comments, the Member did not raise his concerns about his school community in an appropriate and effective manner. Furthermore, the Member attributed false and derogatory comments to teachers, which reflect negatively on their professional reputations and adversely impact the public’s perception and trust of educators. Despite the Member’s disclaimer that he “may have changed some identifying characteristics and details” and “embellished” certain accounts of events, his attempts to anonymize and protect the identities of his colleagues were insufficient. 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 two-month suspension is reasonable and appropriate. Members of the teaching profession are expected to exercise sound professional judgment when posting online or publicly expressing views about the teaching profession. It is unacceptable for Members to make false or derogatory comments about other teachers or administrators or to publish untrue or embellished stories about them. While the cases presented by the parties are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and confirm that a suspension is justified. The Panel notes that the two-month suspension in this case is shorter than the suspensions ordered in the case law provided because this case is distinguished by the fact that the Member’s conduct did not directly involve students and was generally less serious than those cases. Nevertheless, 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 also finds that the course of instruction regarding ethics and communication will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligation to interact respectfully with members of the school community and explain how to appropriately voice concerns about the teaching environment so that those concerns may be addressed and responded to effectively.

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.