DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Waud 2020 ONOCT 193

Date: 2020-08-26

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

David James Waud, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID JAMES WAUD (REGISTRATION #184669)

PANEL: Richard Filion, Chair John Cammarata John Hamilton, OCT

HEARD: August 26, 2020

Charlotte-Anne Malischewski, for the Ontario College of Teachers Jack Brown, for David James Waud 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 August 26, 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.

2David James Waud (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 May 7, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that David James Waud 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 abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);²

(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 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. David James Waud 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 Hamilton-Wentworth District School Board as a teacher at [XXX] School (the “School”) in Hamilton, Ontario.

3. During the 2015-2016 academic year, Student A was a female [XXX] student in a [XXX] class taught by the Member at the School.

Class Excursion:

4. In or about May 2016, the Member failed to take adequate steps to facilitate the participation of Student A in a class trip to [XXX], in Toronto, Ontario, including but not limited to:

(a) he did not make adequate efforts to address issues relating to Student A’s participation in the trip;

(b) he did not adequately implement recommendations from other staff members and school administration to address his concerns about Student A’s participation in the trip;

(c) he objected to Student A’s father attending the class trip;

(d) he refused and/or failed to communicate with Student A’s father concerning the trip;

(e) he failed to adequately cooperate or coordinate with other staff concerning the trip.

5. The Member cited “health and safety concerns” as his rationale for excluding Student A from the trip. In response to the Member’s concerns, the Board accessed a number of resources, including expert consultants, in order to assess the potential health and safety issues and to make recommendations on how Student A could safely participate in the trip. The recommendations and suggestions provided by the experts included the following:

(a) preparing a “social story” for the student;

(b) preparing an excursion safety plan pertaining specifically to the Student and the trip;

(c) sending additional EAs, the System Principal of [XXX], the Vice Principal, and two parents on the trip;

(d) allowing the Student’s father to attend on the trip;

(e) having personal protective equipment (“PPE”) available;

(f) offering a Board cell phone.

Attached hereto and marked as Exhibit “B” is a copy of a memorandum entitled “Summary of Issues” from the Board’s investigative meeting with the Member on June 21, 2016, which sets out all of the resources offered to the Member related to Student A’s participation in the trip. The Member did not implement any of the recommendations or access these resources.

Inappropriate Comments on Report Card:

6. In or about April and May 2016, the Member:

(a) made comments on Student A’s report card which were inappropriate and/or were not adequately related to Student A’s programming and/or learning goals;

(b) refused or failed to make revisions to the mid-term report card of Student A as requested and/or directed by administration;

(c) failed to communicate adequately to Student A’s parent concerning Student A’s program and/or progress.

The memorandum attached as Exhibit “B” also sets out the concerns regarding the Member’s completion of Student A’s report card.

Attached hereto and marked as Exhibit “C” are emails between the Principal and the Member regarding this issue dated May 3 to 17, 2016.

7. The Member acknowledged that he never contacted Student A’s parent to advise that the report card would be delayed, or to report on the concerns relayed in the report card. Attached hereto and marked as Exhibit “D” is a copy of email communication between the Member and school administration dated May 13, 2016.

Board Investigation:

8. On or about June 10, 2016, the Board assigned the Member to home with pay pending investigation. Attached hereto and marked as Exhibit “E” is a copy of correspondence from the Board to the Member dated June 10, 2016.

9. On or about June 24, 2016, the Member retired from the Board effective June 30, 2016. Attached hereto and marked as Exhibit “F” is a copy of the Member’s correspondence dated June 24, 2016.

GUILTY PLEA

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

11. 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(7.2), 1(14), 1(15), 1(18) and 1(19).

12. 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.

13. 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 (d) of the Notice of Hearing, namely that the Member contravened subsections 1(6) and 1(11) 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 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 26, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 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 9 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 acted inappropriately and failed to display sensitivity to the Student’s [XXX]. The Member had an obligation to [XXX] the Student in all school activities, which he failed to do by his misconduct.

9The Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. The Standards of Practice for the Teaching Profession require that members exhibit a “Commitment to Students and Student Learning”. This standard requires members to treat students equitably and with respect and to be sensitive to factors that influence individual student learning. The Member failed to express sensitivity to the Student’s [XXX], excluded the Student from the class trip, and failed to treat her equitably as a result. As such, the Member’s behaviour in this case was contrary to this standard.

10The Member’s conduct constitutes psychological or emotional abuse of a student contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Panel notes that there was no evidence in this case regarding the emotional or psychological effect of the Member’s actions on the Student. Despite this, in making our finding, the Panel places great weight on the Member’s admission that his conduct in this case amounts to psychological or emotional abuse of a student. The Panel accepts College Counsel’s submission that excluding any student from class activities has the potential to be emotionally and psychologically abusive. In this case, the Panel finds that excluding the Student due to her exceptionalities amounted to psychological or emotional abuse of the Student.

11The Member failed to comply with the Act, regulations, or by-laws. The Admitted Facts demonstrate that the Member’s conduct is contrary to subsection 1(14) of Ontario Regulation 437/97. By his behaviour, the Member failed to meet the expectation of “trust” as articulated in the Ethical Standards for the Teaching Profession under section 32 of the College’s by-laws. This standard requires that members embody fairness, openness and honesty. By failing to communicate with the Student’s parents concerning the Student’s program and/or progress, the Member exhibited a complete disregard for his obligation to be open and honest in his professional relationships with parents and guardians.

12The 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, contrary to subsection 1(15) of Ontario Regulation 437/97. Among other things, teachers are required to encourage pupils in the pursuit of learning. The Panel finds that by excluding the Student from the class trip, the Member undermined the learning of the Student, which was discouraging, and in direct opposition to the Member’s duties.

13The Member’s conduct was disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to act in a professional manner and to exercise good judgment and compassion for students. The Committee finds that by refusing to communicate with the Student’s father, and by making inappropriate comments on the Student’s report card that did not relate to her programming or learning goals, the Member’s conduct was disgraceful, dishonourable or unprofessional.

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

F. PENALTY DECISION

15The parties agreed to an Amended Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on August 26, 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, or within 90 days of the date of this Order on a date to be arranged by the Member, 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 suspend the Certificate of Qualification and Registration of the Member for a period of three 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;

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) prior to a return to teaching, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management with a focus on working with students [XXX], 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

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 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. Labbé, 2018 ONOCT 39, Ontario College of Teachers v. Williams, 2016 ONOCT 55 (“Williams”), and Ontario College of Teachers v. Carle, 2020 ONOCT 135 (“Carle”).

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the fact that the Student was [XXX], and the Member’s blatant refusal to follow the reasonable direction of the School’s administration. In terms of mitigating factors, the Member admitted his misconduct, saving the resources required for a contested hearing. Additionally, the Member has not been the subject of discipline proceedings during his long teaching career. After weighing 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 make efforts to [XXX] their students’ [XXX], which the Member failed to do in this case. 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.

19Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in Williams and Carle is of a similar underlying nature. As such, these cases confirm that a three-month suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making it clear that the kind of misconduct the Member exhibited is unacceptable.

20The Panel finds that the course of instruction regarding classroom management with a focus on working with students [XXX] will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher who works with students [XXX] and will help him to make better decisions in any future interactions with students.

21The 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.