Ontario College of Teachers v. Dundas, 2020 ONOCT 201

Discipline Committee of the Ontario College of Teachers

Ontario College of Teachers v Dundas 2020 ONOCT 201

Date: 2020-10-05

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

Jack Harold Dundas, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JACK HAROLD DUNDAS (REGISTRATION #276129)

PANEL: Rebecca Forte, OCT, Chair John Cammarata Nicola Powadiuk, OCT

HEARD: September 30, 2020

Jean-François Schaan, for the Ontario College of Teachers Jerry Raso, for Jack Harold Dundas 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 September 30, 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.

2Jack Harold Dundas (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 February 6, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Jack Harold Dundas 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 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);

(c) 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

(d) 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. The Member is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “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 London District Catholic School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in London, Ontario.

3. During the week of January 23, 2017, the Member found and removed the final examination for the [XXX] course (the "examination") from a storage area in the School. The Member intended to provide the examination to [XXX], who was enrolled in that course. The Member did not teach the [XXX] course and did not have a legitimate reason to have a copy of the examination.

4. On or about January 30, 2017, the teacher of the [XXX] course discovered the examination in the [XXX] textbook, which [XXX] had returned prior to the [XXX] final test. The examination was in a folded paper package, and its front page featured a blue Post-it note in the Member's handwriting that read: "FOR YOUR EYES ONLY!! DO NOT TAKE TO [XXX] EITHER [XXX]" (the “note”). Attached hereto and marked as Appendix “B” is a copy of the note and the examination booklet it was attached to.

5. If the Member were to testify, he would state that:

• he entered the storage room for another purpose and ended up finding the examination;

• he removed the examination from the School’s storage room, intending to provide it to [XXX], and he attached the note on the examination;

• he took the exam out of [XXX] concern for the mental well-being of [XXX] who was going through a very rough period;

• he then changed his mind about providing the examination to [XXX] and left the examination in his bag;

• he kept his bag locked in his [XXX] most of the time, but brought it [XXX] on the night before the [XXX] exam to do some work; and

• [XXX] went through his bag looking for a charger and found it and removed the examination from his bag without his knowledge.

6. At the School Board investigation meeting, the Member expressed regret and remorse about this situation.

7. The Board, after its investigation, concluded that the Member’s conduct was inappropriate and constituted a significant breach of trust. The Board suspended the Member for four days without pay, explaining that it had considered the Member’s 23-year teaching record with the Board and the Member’s extra activities in the School to support students as factors that led to this measure. Attached hereto and marked as Appendix “C” is a copy of the Board’s discipline letter, dated April 12, 2017.

8. On or about October 11, 2018, the Member voluntarily completed a six-hour course entitled Ethical Practices and the Standards of the Teaching Profession provided by his federation. Attached hereto and marked as Appendix “D” is a letter from the Member’s federation confirming the Member’s completion of the course and attaching a certificate of completion.

GUILTY PLEA

9. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-8 above (the “Admitted Facts”).

10. 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), and 1(19).

11. 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 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 in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel.

12. In light of the Admitted Facts and the Member’s 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

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on September 30, 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) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 8 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.

8The Admitted Facts demonstrate that the Member’s actions failed to uphold the ethical standards of “trust” and “integrity”, contrary to subsection 1(5) of Ontario Regulation 437/97. The Member removed a copy of a final examination for a [XXX] course from his School’s storage area with the intent of providing it to [XXX], who was enrolled in the course. By his behaviour, the Member failed to demonstrate honesty, reliability and moral action embodied in the standard of “integrity”. The Member’s behaviour also demonstrates a lack of fairness and honesty, embedded in the ethical standard of “trust”. By providing [XXX] with the opportunity to see the examination for the [XXX] course in advance, the Member undermined fairness to other students and breached the trust of his colleagues.

9The 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 duties, teachers are expected to act as positive role models and to demonstrate the highest regard for a number of virtues set out in section 264(1)(c), including truth, justice and loyalty. The Member failed to demonstrate these virtues and act as a positive role model when he intentionally removed a stored copy of a final examination from his School and facilitated an opportunity for a student [XXX] to commit academic dishonesty. Though the Member indicated that he had reconsidered giving the examination to [XXX], he nevertheless brought it [XXX] the day before the exam. [XXX] then found it.

10The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. As figures of trust and authority, members of the teaching profession are expected to act in a professional manner, to exercise good judgment and to treat all students fairly. The Member failed to discharge these responsibilities and took advantage of his privileged position as a teacher by removing a copy of an examination from the School with the intent of providing it to [XXX]. His wrongful behaviour demonstrates a lack of integrity, professionalism and moral action which is disgraceful, dishonourable and unprofessional.

11Similarly, 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 by violating the trust placed in him by students, colleagues and the public.

F. PENALTY DECISION

12The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on September 30, 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 (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) the Member shall enroll in and successfully complete, at his own expense, a course of instruction approved by the Registrar regarding professional ethics and the Standards of the teaching profession. The Committee acknowledges that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee;

(b) the Member shall provide to the Registrar a written certificate from the course provider stating that the Member has successfully completed the course. The Committee acknowledges that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee.

G. REASONS FOR PENALTY DECISION

13The 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. Roloson, 2018 ONOCT 60, Ontario College of Teachers v. Kastner, 2017 ONOCT 1, Ontario College of Teachers v. Cosentino-Galloro, 2019 ONOCT 4and Ontario College of Teachers v. Patterson, 2014ONOCT 81.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel accepts the parties’ submission that there are no aggravating factors. The mitigating factors are that the Member admitted his misconduct and participated in the discipline process, conserving the resources that would otherwise be required for a contested hearing. Additionally, the Member expressed remorse and has not been the subject of discipline proceedings during his 23-year teaching career. He remains employed with the Board. The Panel also notes that the Member’s misconduct was an isolated incident and that he voluntarily completed a Registrar-approved course on ethical practices and standards. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

15The Panel finds that the Member’s dishonest conduct warrants a reprimand by his peers. Though the Member did not put the exam that he removed from the School in [XXX] hands, he affixed a post-it note to it with the instruction: “for your eyes only” and brought it [XXX] in his bag. He changed his mind about providing it to [XXX], but his actions still inappropriately encouraged a student to take an unfair academic advantage over other students. The Member’s conduct put his integrity as a teacher into question as well as the integrity and fairness of the assessment process. 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.

16The Panel acknowledges that the Member voluntarily and successfully completed the requirements under sub-paragraphs 2(a) and (b) of the parties’ Joint Submission on Penalty in advance of the Panel’s penalty order. The Member completed a six-hour course of instruction entitled Ethical Practices and the Standards of the Teaching Profession. The scope of the course included concerns raised with respect to the Member’s misconduct in addition to other principles and values in professional practice. The Member provided the Registrar with a written certificate of course completion dated October 11, 2018 from the course provider.

17The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.