Ontario College of Teachers v Diletto 2020 ONOCT 194

Date: 2020-07-30

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

Joseph Diletto, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOSEPH DILETTO (REGISTRATION #486869)

PANEL: John Hamilton, OCT, Chair

Irene Dembek, OCT

Tom Potter

HEARD: July 22, 2020

Christine Wadsworth and Vincent DeMarco, for the Ontario College of Teachers

No one appearing for Joseph Diletto

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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 or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

By order of Justice P. French of the Ontario Court of Justice, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on July 22, 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.

2Joseph Diletto (the “Member”) did not attend the hearing and did not have 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.

4Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of the Student, who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of the Student.

5Additionally, the Panel received a certified copy of the transcript of the Reasons for Sentence from the Member’s criminal proceeding before Justice P. French dated August 21, 2014 (Exhibit 2 at Tab H). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

B. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated October 18, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Joseph Diletto 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student 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;

(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. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

Joseph Diletto 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.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Etobicoke, Ontario.
During the 2013-2014 school year, the Member was a Grade [XXX] teacher at the School.
During the 2013-2014 school year, the Student was a [XXX] year old male student in Grade [XXX] at the School. The Student was new to the School in September 2013. He met the Member when he joined the Member’s [XXX] [XXX] club in the fall of 2013.

2013-2014 Academic Year:

During the fall of 2013, the Member met the Student’s mother. They discussed the Student, his transition to the School, and his interest in [XXX]. Following this meeting, the Member obtained the Student’s mother’s permission to take the Student to [XXX] to learn about and experiment with [XXX]. The Student’s mother was pleased that the Member took an interest in her son.
With the Student’s mother’s permission, the Member became the Student’s [XXX]. He and the Student began to spend an increasing amount of time together.
Some colleagues observed the Member and the Student spending time alone together at School and reported concerns to the Principal. In December 2013, the Principal addressed the issue of perception with staff, after learning that “certain staff” spent lunch alone with “select students”. In February 2014, a colleague expressed concern to his Principal after he saw the Member and the Student leave the School together.
During placement discussions in the spring of 2014 for the following school year, the Member requested that the Student be placed in his class. His colleague disagreed, citing reasons including that the Student needed to spend more time with his peers and to learn to advocate for himself, instead of relying on the Member. In addition, she was concerned because other students talked about the Student being the Member’s “favourite.”

Personal Relationship Outside of School and School Hours:

The Member spent time with the Student outside of school and school hours. The Member always sought and received the Student’s mother’s permission when he spent time alone with the Student outside of School.
The Member engaged in an inappropriate personal relationship with the Student between December 2013 and June 2014, including but not limited to when he:

(a) took the Student on outings, including to[XXX], the [XXX], [XXX]and [XXX];

(b) called the Student by the nickname [XXX]“, and referred to himself as [XXX] in relation to the Student;

(c) gave the Student gifts of [XXX]he made for the Student documenting some of their outings together. Attached hereto and marked as Exhibit “B” are pages from a [XXX].

July 2014:

The Member made a number of arrangements through the Student’s mother to spend time with the Student during July 2014. With the Student’s mother’s knowledge and permission, the Member took the Student [XXX] in a [XXX], to [XXX] and [XXX], and invited the Student over to his home for meals and to watch movies. The Member also helped the Student prepare a [XXX] for a [XXX], at his mother’s request. Attached hereto and marked as Exhibit “C” are copies of some of the text messages exchanged between the Member to the Student’s mother regarding summer plans.

August 2014:

During the first half of August of 2014, the Student was away on vacation with his family. At some point while on vacation, the Student stopped communicating electronically with the Member, however, the Member continued to attempt to contact the Student. When the Student did not respond, the Member texted the Student’s mother to tell her that he had not heard from the Student and he was concerned that “something was wrong”.
The Student and his family returned from vacation on August 17, 2014. The Member texted the Student’s mother upon their return, attempting to make arrangements to spend time with the Student, and she told him she would have the Student contact him.

The Phone Call - August 19, 2014:

The Student was apprehensive and did not contact the Member immediately because he was concerned the Member would be upset with him. On August 19, 2014, they finally spoke over the phone. The Member yelled at and berated the Student for not contacting him sooner upon his return from vacation, and for not thinking of or caring about him while on vacation. During this call, the Member was so upset that he threatened to kill himself. The Student’s friend and stepfather were with the Student at the time, aware that the Student was hesitant to speak with the Member, and recorded the telephone conversation. The Member was angry and abusive towards the Student, who was visibly shaken, frightened and confused. The Member tried to convince the Student to meet him that evening to talk in person. The Student agreed to meet to appease the Member, but the meeting did not occur.
The Student’s mother was not home at the time of the call, and the Member sent her a series of texts trying to explain the call. However, after she heard the taped phone call and saw the effect it had on her son, the Student’s mother advised the Member that his relationship with the Student had escalated outside of a normal student-teacher relationship, and warned him to refrain from contacting the Student and her family. Despite her request, the Member continued to text the Student’s mother and attempted to speak with her. Attached hereto and marked as Exhibit “D” are copies of the text messages exchanged between the Member and the Student’s mother regarding the phone call.
The Student’s mother reported her concerns about the Member to the Principal, and told the Principal that she had warned the Member to stop contacting them.
On August 20, 2014, the Principal contacted the Member and advised him that he would be assigned to home duties pending the investigation.

Children’s Aid Society Investigation:

The CAS investigated and concluded that the Member was grooming the Student for sexual interactions and that the allegation of sexual harm was verified. Attached hereto and marked as Exhibit “E” is a copy of the CAS letter to the Board dated September 19, 2014.

Criminal Proceedings:

On February 19, 2016, in the Ontario Court of Justice, the Member pleaded guilty to assault contrary to section 266 of the Criminal Code. The Member:

told the Student that he deeply cared for him;
hugged and touched the Student’s back on several occasions without consent, which made the Student uncomfortable;
inappropriately touched the Student’s hair and back;
rubbed the Student’s foot without his consent after the Student told him that he had sprained his ankle; and,
stated to the Student that the Student “didn’t care about him” and asked the Student “would you want me to jump off the balcony?”.

On May 31, 2016, he received a conditional discharge with 18 months of probation and 50 hours of community service. Attached hereto and marked as Exhibit “F” is a copy of the certified Court Information; Exhibit “G” is a copy of the Transcript of Proceedings before the Honourable Justice French in the Ontario Court of Justice, dated February 19, 2016; Exhibit “H” is a copy of the Reasons for Sentence, the Ontario Court of Justice, dated May 31, 2016.

Board Investigation:

By letter dated September 13, 2016, the Board advised the Member it intended to recommend the termination of his employment with the Board. The Member was placed on an unpaid leave effective September 14, 2016, and his employment with the Board was terminated, effective October 26, 2016. Attached hereto and marked as Exhibit “I” is a copy of the Board’s letter to the Member dated September 13, 2016.

PLEA OF NO CONTEST

By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).
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(7.1), 1(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member further does not contest that the alleged conduct constitutes sexual abuse as defined in Section 1 of the Act.
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 without the advice of legal counsel.

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.
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

8Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel submitted that proceeding under both subsections 1(5) and 1(14) would be duplicative based on the facts outlined in the Statement of Uncontested Fact and Plea of No Contest. As such, College Counsel requested that subsection 1(5) be withdrawn. The Panel granted this request.

9Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions College Counsel, the Panel rendered an oral decision on July 22, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 21 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. Due to this acknowledgment by the Member, the Panel’s role is not to determine whether the Uncontested Facts would better fit under other heads of misconduct. The Panel is required to place significant weight on the fact that the Member has not contested the finding when making their decision.

11The Uncontested Facts demonstrate that the Member had an inappropriate relationship with Student 1 which constituted physical, emotional and sexual abuse of a student contrary to subsections 1(7.1), 1(7.2) and 1(7.3) of Ontario Regulation 437/97. While the Student was [XXX] years old, the Member spent time alone with him, took him on outings, called him by the nickname [XXX], gave him gifts, told the Student that he deeply cared for him, hugged the Student without consent, touched the Student’s back without consent, touched the Student’s hair, and was angry and abusive towards the Student when he failed to contact the Member upon his return from vacation.

12The Member’s conduct constitutes physical abuse as he touched the Student without consent on several occasions. The Member’s physical abuse of the Student is further confirmed by his guilty plea to assault in the Ontario Court of Justice.

13The Member’s conduct amounts to emotional abuse of the Student as the Student was emotionally affected by the inappropriate relationship with the Member and felt uncomfortable, shaken, frightened and confused as a result of the Member’s actions.

14The Member’s grooming behaviour in this case constitutes sexual abuse. Sexual abuse is defined at section 1 of the Act and includes touching, behaviour or remarks of a sexual nature by a member towards a student. The Panel finds that the Member’s grooming of the Student for a sexual purpose meets this definition. Among other things, the Member isolated the Student, took him out on outings without the Student’s parents present, gave the Student gifts, sent the Student emails late at night, hugged and touched the Student without consent, and continued to contact the Student after being asked not to by his parents. The Member’s inappropriate relationship with the Student was noticed by at least one of his colleagues, who spoke up about it during student placement discussions. After investigating this matter, the Children’s Aid Society also concluded that the Member was grooming the Student for sexual interactions and that the allegation of sexual harm was verified. Additionally, the Panel puts significant weight on the fact that the Member has not contested that his behaviour amounts to sexual abuse.

15By his abuse of the Student, the Member acted contrary to subsection 1(14) of Ontario Regulation 437/97. Engaging in this kind of inappropriate relationship with a student is a clear breach of the Ethical Standards for the teaching profession, codified in Bylaw 32 of the College Bylaws. The Panel finds that the Member’s misconduct was a violation of all of the ethical standards: care, respect, trust, and integrity. In particular, the Member’s actions violated the ethical standard of “trust”. The Member violated the Student’s trust by touching the Student without his consent, and he violated the trust of the Student’s mother by continuing to contact the Student after she explicitly requested that the Member stop contacting him.

16The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Members hold a unique position of trust and authority. They are expected to encourage their students in the pursuit of learning and to set an example for students. The Member’s conduct was entirely at odds with these obligations as a member of the profession.

17The Member’s misconduct is disgraceful, dishonourable, and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to create a safe learning environment for students, and not to exploit their position of trust and authority. The Member acted disgracefully, dishonourably and unprofessionally by yelling at the Student, by grooming the student for a sexual purpose, and by threatening to kill himself while speaking to the Student on the phone, all of which is completely unacceptable and placed the student in a very difficult and uncomfortable position.

18Similarly, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when members abuse their position of trust and authority by physically, emotionally and sexually abusing their students.

F. PENALTY Decision

19The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 22, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;
The Member is directed to appear before the Committee on August 10, 2020 to receive a reprimand which will be delivered by video, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

G. REASONS FOR PENALTY DECISION

20The Member’s professional misconduct consisted of or included sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and notes that it has no discretion in this regard. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but finds it reasonable not to make these additional orders in light of the Member’s plea of no contest and joint submission on penalty.

21The Panel denounces the Member’s misconduct in the strongest terms.

Date: July 30, 2020

John Hamilton, OCT

Chair, Discipline Panel