Ontario College of Teachers v. Kennedy, 2020 ONOCT 175

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Kennedy 2020 ONOCT 175

Date: 2020-07-04

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

Kevin Daniel Kennedy, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KEVIN DANIEL KENNEDY (REGISTRATION #461494)

PANEL: Jonathan Rose, Chair John Hamilton, OCT Sara Nouini, OCT

HEARD: June 24, 2020

Eli Mogil, for the Ontario College of Teachers Jack Brown, for Kevin Daniel Kennedy Erica Richler, 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 24, 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.

2Kevin Daniel Kennedy (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 September 12, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member 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 released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);¹

(c) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(d) 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);

(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);³ and

(f) 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. Kevin Daniel Kennedy 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 Upper Canada District School Board (the “Board”) as a [XXX] and [XXX] teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. The Member began his employment with the Board on September 1, 2004, and continues to teach at the School.

Board Policy and Procedure

4. On or about January 30, 2014, the Board revised its Procedure regarding “Community Use of School Grounds and Facilities” to include that “a custodian must be on duty during the time the building is in use by a user organization”. Attached hereto and marked as Exhibit “B” is a copy of the Board Policy and Procedure.

5. On October 2, 2014, the Vice Principal emailed the Member requesting confirmation that he had “read the policies and procedures from the September start up”. The Member responded by email, twice, confirming that he had read them. Attached hereto and marked as Exhibit “C” is a copy of the Email Exchange dated October 2, 2014.

Email Exchanges regarding the [XXX] Game

6. In December 2013, the Member organized a student [XXX] game, which he held at the School over the Christmas holiday break. The game was a success, and the Member wished to make it an annual event.

7. The following year, on December 16, 17, 19, and 20, 2014, the Member advertised via Twitter that the “2nd Annual [XXX] Game” would be held at the School on December 30th, 2014.

8. On December 19, 2014, the Member sent an email to the Head Custodian, copying his Principal, informing the Head Custodian that the “second annual [XXX] game” was scheduled to take place on December 30, 2014. In his email, the Member addressed the following issue: “I realize, however, that the rules are different this year and that we will need a custodian in the building that day”, and he asked the Head Custodian to try to find a custodian to assist. Attached hereto and marked as Exhibit “D” is a copy of the Member’s email, dated December 19, 2014.

9. By December 23, 2014, the Member had not received a response from the Head Custodian. He wanted the game to proceed on December 30th, so he texted the Principal to advise that he had not yet heard back from the Head Custodian and to request her support. The Principal suggested that if the Head Custodian did not respond, the Member may have to reach out to custodians himself. The Member advised the Principal he had already spoken to a custodian who would assist if needed, and confirmed with his Principal, “So I have your permission to book somebody if I don’t hear back from [the Head Custodian]?” His Principal replied, “Yes you do – be sure to email [the Head Custodian] and let him know if you need to proceed without him.” Attached hereto and marked as Exhibit “E” are copies of the text messages between the Member and his Principal.

10. On December 24, 2014, at approximately 6:40 p.m., the Head Custodian responded by email to the Member’s December 19, 2014 email, copying his response to the Principal and others at the Board, stating the following: “Sorry, but the school is not open on December 30th, so you will not be permitted in. The entire school board is shut down till Jan. 2nd and on that date the school is not open to the public. Unfortunately, but you should have applied for a community use permit with Judi Kaiser and she would have informed you of this, at that time.” Attached hereto and marked as Exhibit “F” is a copy of the Head Custodian’s email to the Member dated December 24, 2014.

11. The Member emailed the Head Custodian back on December 26, 2014, copying the same people that the Head Custodian had included in his email to the Member two days earlier, and stated the following: “Thanks for the info. We’re gonna need to re-schedule anyway. Too many players on vacation, ski trips, etc this year. If it’s gonna be on a Saturday in January I’ll let you know.” Attached hereto and marked as Exhibit “G” is a copy of the Member’s email dated December 26, 2014.

12. The Head Custodian replied to the Member that “Saturdays are booked”, and suggested the Member check with him when they return from holidays to see what was available for the Member’s game. Attached hereto and marked as Exhibit “H” is a copy of the Head Custodian’s reply to the Member dated December 27, 2014.

The [XXX] Game:

13. On December 30, 2014, the Member held his second annual [XXX] [XXX] game in the School’s gym. He signed into the School at approximately 11:00 a.m., and signed out of the School at approximately 2:30 p.m. He brought water for the participants and tidied the gym after the game. The students and former students in attendance were not aware that the Member did not have permission to hold the game in the School that day. No one was harmed during the event, and the Member did not tell the students not to talk about it. Later that day, the Member posted pictures of those who attended and participated on the School Twitter page.

January 2015:

14. After the holiday break on January 7, 2015, the Principal asked the Member whether he had picked a date yet for the [XXX] game. The Member replied that he had held the game on December 30, 2014. The Principal was surprised and reminded the Member of his email wherein he stated that he was rescheduling the event to January. The Member explained that he wrote the email because the Head Custodian had not been talking to him, and he wanted to hold the game on December 30th, 2014, without having to worry about the Head Custodian showing up and causing a scene in front of the participants.

15. The Member further explained that he thought a custodian was required to be present to test the water, so he took care of the issue by bringing cases of water for the participants to drink. The Principal told the Member that the issue was much bigger and, by lying, the Member had put the safety of those present in danger.

Tweet re: Absences:

16. On or about January 8, 2015, the Member was concerned about one of his students having missed three classes. The Member took a picture of the attendance record, cropped out all other student names, and tweeted it out, hoping the Student and her mother would see the tweet. On or about January 16, 2015, the Board spoke to the Member about its concerns regarding issues of confidentiality and disrespecting the Student’s right to privacy, by posting the information on a social media site available to others.

Board Investigation

17. The Board investigated by interviewing those involved including the Head Custodian and the Member. By letter dated January 26, 2015, the Board reviewed the following information the Member had confirmed at their meeting on January 16, 2015:

(a) he had received clear email communication on December 24, 2014, from the Head Custodian that the School was closed and could not be accessed on December 30, 2014;

(b) he replied to this email on December 26, 2014, indicating to the Head Custodian and the Principal that he would reschedule the event to a date in January, 2015;

(c) he held the event/[XXX] game on December 30, 2014, without permission and without a custodian in attendance.

18. The Board concluded that the Member: (i) failed to follow Board policy and procedure, of which he was aware; (ii) willfully disregarded the Head Custodian’s direction that the School was closed and unavailable for his use; (iii) was dishonest in his December 26, 2014 email to the Head Custodian and Principal, and admitted his intention to mislead the Head Custodian into believing the event would be rescheduled; and, (iv) knowingly went against his Principal’s direction that a custodian be present for the event if it took place. The Board concluded that the Member’s decision “endangered those in attendance and put the Board and [himself] at risk and demonstrates lack of good judgment and willful misconduct”, and suspended the Member for three days without pay. Attached hereto and marked as Exhibit “I” is a copy of the Principal’s Letter to the Member, dated January 26, 2015.

19. The Member’s union filed a grievance, which was settled by reducing the three-day suspension to a one-day suspension, revising the discipline letter, and removing it from the Member’s personnel file. Attached hereto and marked as Exhibit “J” is a copy of the Board’s letter to the College dated January 4, 2017, and the revised Discipline Letter dated January 26, 2015.

20. The Member continues to teach at the School, and continues to successfully engage in and support extra-curricular activities for students.

21. Attached hereto and marked as Exhibit “K” is a copy of The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession.

GUILTY PLEA

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

23. 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(5), 1(15), 1(18) (unprofessional conduct), and 1(19).

24. 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 with the advice of legal counsel.

25. 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 (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(6) and 1(14) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). College Counsel stated that the Panel’s permission to withdraw the allegation relating to subsection 1(6) was being sought as a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. With respect to the withdrawal of subsection 1(14), College Counsel submitted that proceeding under both subsections 1(5) and 1(14) would be duplicative based on the Admitted Facts. The Panel accepted the submissions of College Counsel and 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 24, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) [unprofessional only], and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 21 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.

9The Panel finds that the Member failed to maintain the standards of the profession. By holding a [XXX] tournament at the school without a custodian present, the Member knowingly failed to follow the appropriate board policy regarding Community Use of School Grounds. Additionally, the Member misled the head custodian and the principal by making them believe that the Member would reschedule the [XXX] tournament. Specifically, the Member breached the ethical standards of “trust” and “integrity”, which require members to act with openness and honesty and which would have required the Member to be truthful with his colleagues.

10The Panel finds that the Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. Among other things, teachers are required “to assist in developing co-operation and co-ordination of effort among the members of the staff of the school”. The Member’s deliberate misleading of his colleague was contrary to this requirement and showed wilful disregard for co-operation among the staff at the School.

11The Panel finds that the Member’s conduct was unprofessional. In particular, the Member acted unprofessionally by publicly tweeting about the absence of a student. This conduct was unprofessional because the Member failed to respect the student’s privacy, and should have addressed any of his concerns with the student’s attendance directly with the student and their family.

12Similarly, the Member’s conduct was unbecoming a member in that it undermined the reputation of the teaching profession and violated the trust that the public places in members. Members of the profession are expected to act with honesty and integrity and to follow Board policies and procedures, which exist in part to ensure the safety of the school community. When members disregard Board policies and behave dishonestly, as the Member did in this case, the public loses faith in the system that is designed to ensure the well-being of students.

F. PENALTY DECISION

13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on June 24, 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 via video conference, 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 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 ninety (90) 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 professional ethics, 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, 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 thirty (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

14The 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 parties submitted several prior decisions of the Discipline Committee for the Panel’s consideration. The cases presented, while not exactly applicable to this case, demonstrated a range of penalties for misconduct that included deliberate dishonesty by a member. The Panel accepts that the penalty proposed in the Joint Submission on Penalty falls within that range.

15The Panel considered the Member’s circumstances in comparison to the cases provided. In all of the cases provided by the parties, the misconduct was more serious than that of the Member. There are several mitigating factors in the Member’s case. First, the conduct in this case can be properly characterized as a temporary lapse in judgment; the Member did not engage in deception for personal gain like in the cases provided. Second, the Member admitted his misconduct, saving the time and expense of a contested hearing. Third, the Member has expressed sincere remorse for the lapse in judgment that led to this misconduct. Finally, the Member has not been the subject of discipline proceedings prior to or following this misconduct. Having considered the circumstances in this case, the Panel accepts that the penalty proposed by the parties is reasonable. The Panel recognizes that we can only reject the proposed penalty if it brings the administration of the discipline process into disrepute or is otherwise contrary to the public interest. Since the proposed penalty does not meet that threshold, the Panel orders a reprimand and coursework in accordance with the joint submission.

16The Panel finds that the Member’s conduct warrants a reprimand by his peers. 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.

17The Panel finds that the course of instruction regarding professional ethics will remind the Member of his obligations as a teacher and will help him continue to make better decisions and to exercise good judgment in his professional duties.

18The 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 narrowed to unprofessional conduct only at the request of College Counsel.