Ontario College of Teachers v. Snider, 2020 ONOCT 176

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Snider 2020 ONOCT 176

Date: 2020-08-28

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

Jason Andre Mark Snider, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JASON ANDRE MARK SNIDER (REGISTRATION #534312)

PANEL: Diane Ballantyne, OCT, Chair Jonathan Rose Nancy Saunders, OCT

HEARD: August 28, 2020

Charlotte-Anne Malischewski and Vincent DeMarco, for the Ontario College of Teachers Jack Brown, for Jason Andre Mark Snider Rebecca Durcan, 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 August 28, 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.

2Jason Andre Mark Snider (the “Member”) did not attend the hearing but 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 January 20, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Jason Andre Mark Snider is guilty of professional misconduct as defined in the Act in that:

(a) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);¹

(b) he falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);²

(c) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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);

(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. Jason Andre Mark Snider 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 York Region District School Board (the “Board”) as a teacher at Alexander Mackenzie High School (the “School”) in Richmond Hill.

3. At all material times during the 2016-2017 and 2017-2018 school years, the Member worked as a distributor for Isagenix, an international company that creates, distributes and sells health and wellness products.

4. Between 2015 and 2018, the Member completed a number of Isagenix fitness and lifestyle challenges. In the spring of 2017, the Member was selected by Isagenix to participate in an “IsaBody Escape” event, consisting of an all-expense paid trip to Costa Rica in September 2017.

5. On or about June 15, 2017, the Member submitted a “Short Term Absence Request” to his Board, requesting an unpaid leave for five days, September 22, 25, 26, 27, 28, 2017, to attend the event.

6. On or about September 13, 2017, the Board denied the Member’s request on the basis that “requests of this nature” do not fall within the Board’s guidelines. Attached hereto and marked as Exhibit “B” is a copy of the Member’s Short Term Absence Request, and a copy of the Board’s Email to the Member dated September 13, 2017, explaining why his request had been denied, and advising that the use of sick leave codes was “not an option”.

7. The Member was at School when he received the Board’s email. The Member was upset and swore in the presence of staff, and indicated that he intended to go on the trip.

8. The Member attended the Isagenix event in Costa Rica. He claimed his absences on September 22, 25, 26, 27, 28, 2017, as “personal illness” days.

9. By letter dated October 3, 2017, the Board advised the Member that it concluded his absence was in contravention of the Board’s direction and constituted insubordination. The Board adjusted the coding for the days the Member was absent to reflect unpaid absences and adjusted his pay accordingly. The Board suspended the Member for 12 days without pay. The Member was advised to return to work following his suspension on October 19, 2017. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter dated October 3, 2017.

Sick Leave Benefits:

10. After he was advised of the Board’s conclusions (see paragraph 8 [sic] above), the Member provided the Board with notes supporting medical limitations and a leave of absence from October 2017 through to February 2018. The Member provided medical notes subsequent to the Isagenix event in Costa Rica that he believed supported his medical leave in September of 2017.

11. Between October 4, 2017 and February 2, 2018, the Member received sick leave benefits from the Board. During this time, he was involved in the promotion and sales of Isagenix products, including travel to the United States and participation in a business conference for Isagenix.

12. The Board initiated an investigation into whether the Isagenix-related activities in which the Member was involved between October 4, 2017 and February 2, 2018, conflicted with the medical limitations he provided to the Board in support of his absence and receipt of sick pay benefits from the Board.

13. At a meeting with the Board on February 5, 2018, the Member confirmed that he was involved with the business of Isagenix while in receipt of sick pay benefits from the Board.

14. By letter dated March 1, 2018, the Board advised the Member that it determined his “misuse of sick leave benefits” and his “conduct and activities while in receipt of sick pay benefits” constituted professional misconduct, and that his actions contravened the Board’s expectations and policies, constituting “just cause for termination”. Attached hereto and marked as Exhibit “D” is a copy of the Board’s letter to the Member dated March 1, 2018.

15. The matter was grieved. The grievance proceeded to arbitration. The Member and the Board agreed that the Member would resign.

16. The Member resigned from the Board, effective March 7, 2018.

GUILTY PLEA

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

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

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 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.

20. 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) and (b) of the Notice of Hearing, namely that the Member contravened subsections 1(12) and 1(13) of Ontario Regulation 437/97, be withdrawn. The parties stated that the Panel’s permission to withdraw the 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 parties submitted that it is in the public interest to proceed with the agreement as drafted, and to save the College the time and resources required to proceed with a contested hearing in this matter. The Panel granted this request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on August 28, 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 admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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 openly disregarded the Board’s decision to deny his absence request and used sick leave to attend an event in Costa Rica in contravention of Board policy.

9The Member failed to comply with the Act, or the regulations, or the bylaws, contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member breached bylaw 32.01, the Ethical Standards of the Teaching Profession. The ethical standard of “trust” embodies “fairness, openness and honesty”. The ethical standard of “integrity” provides that members are expected to conduct themselves with “honesty, reliability and moral action”. The Member did the opposite. He misused his personal sick days to attend an event in Costa Rica, and later misused sick leave benefits to travel to the United States and participate in a business conference for Isagenix in contravention of the ethical standards of “trust” and “integrity”.

10The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that teachers must demonstrate the highest regard for a number of virtues including truth, justice and loyalty. By using sick leave despite the fact that his request for leave was denied, the Member breached this provision. The Member’s dishonest conduct in this case was at odds with his obligations as a member of the profession.

11The Panel finds that the Member’s conduct is disgraceful, dishonourable, or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. In particular, the Member acted unprofessionally by reacting to the Board’s refusal by swearing in the presence of staff and openly expressing an intention to disobey the Board’s direction.

12Similarly, the Panel finds that the Member’s deceitful conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97 in that it undermined the reputation of the teaching profession.

F. PENALTY DECISION

13The parties agreed to an Amended Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on August 28, 2020, the Panel accepted the Amended 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 on consent of the parties, 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 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 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

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 Panel finds that the penalty proposed in the Amended 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. Kosonic, 2015 ONOCT 46, Ontario College of Teachers v. Roloson, 2018 ONOCT 60, Ontario College of Teachers v. Kopylov, 2016 ONOCT 29, Ontario College of Teachers v. Millson, 2018 ONOCT 18, and Ontario College of Teachers v. Marok, 2020 ONOCT 154.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is that the Member openly and blatantly contravened the Board’s direction by proceeding with a trip after his leave application was refused. 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 in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s contravention of the Board’s refusal to grant him sick leave warrants a reprimand by his peers. Members are expected to use sick leave benefits in accordance with Board policies and not to take advantage of sick leave policy to take personal trips. 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 is intended to assist in the rehabilitation of the Member. The coursework will remind the Member of his ethical obligations as a teacher and will help him to make better decisions with respect to any future requests from administration.

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.