DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Burwell 2021 ONOCT 104

Date: 2021-09-24

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

Terry Wade Burwell, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

TERRY WADE BURWELL (REGISTRATION #201792)

PANEL: Josée Landriault, OCT, Chair Jacqueline Boulianne, OCT Ben Drory

HEARD: September 22, 2021

Danielle Miller, for the Ontario College of Teachers Michele Hamilton, for Terry Wade Burwell 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 22, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Terry Wade Burwell (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset 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 30, 2019 (Exhibit 1) were as follows:

IT IS ALLEGED that Terry Wade Burwell 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 failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) 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);

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

(e) 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);

(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);

(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);

(i) he practised the profession while the member was in a conflict of interest, contrary to Ontario Regulation 437/97, subsection 1(26).

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provided the following:

1. Terry Wade Burwell is a member of the Ontario College of Teachers. Attached 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 Renfrew County District School Board (the “Board”) as a principal at [XXX] School (the “School”) in [XXX], Ontario. At all material times, Person A was a teacher at the School.

Background

3. The Board was notified of an alleged consensual sexual relationship between the Member and one of his teaching staff in or about April 2018.

4. The Member met with the Board on May 1, 2018. He denied having an affair with any staff member, including Person A. He acknowledged that such a relationship would amount to a conflict of interest. When questioned about specific absences from the School in April 2018, the Member provided explanations for each. He was reminded to enter his absences into SmartFind Express (“SmartFind”), the Board’s absence reporting system.

5. Based on the Member’s responses and the trust placed in him, it was determined that there would be no further inquiries unless new information came forward.

Relationship with Person A

6. The Member’s [XXX] contacted the Board on May 27, 2018 and disclosed the existence of a sexual relationship between the Member and Person A. The Member called the Board’s Director of Education (the “Director”) the next day and admitted the relationship. He turned in his Board-assigned cell phone at the Board’s request.

7. The Member met with the Board on June 6, 2018 and acknowledged that he had denied his relationship with Person A at the May 1 meeting. He claimed that he had taken steps to avoid a conflict of interest by notifying the Director several months prior that he was involved in an emotional affair with a staff member and needed a transfer for that reason. In fact, the Member had not informed the Director that he was involved in a relationship with Person A, or with any other staff member, and had not followed up with the Director regarding a possible transfer from the School.

8. The Member’s cell phone records confirmed that he had spent a significant number of hours on the phone with Person A, during school hours, over the course of the 2017-2018 academic year. In addition, the Member spent additional time text messaging Person A or speaking to Person A via calls initiated by her during school hours.

9. This was a difficult time for the Member, as he was experiencing significant [XXX] health issues that were impacting his personal life and his work.

10. During the investigation, the Member informed the Board that he was engaged in [XXX], as well as seeing a [XXX]. He provided a letter from the [XXX] to the Board, which disclosed his personal health information.

Unreported Absences

11. The Board’s Superintendent of Program Services (the “Superintendent”) sent an email to all principals within her family of schools on October 18, 2017. It instructed them to inform her if they were going to be away from their building, arriving late, or leaving early. It reminded them to enter their absences into SmartFind for tracking purposes. The Member received this email and was aware of his obligations in this regard.

12. Contrary to the Superintendent’s direction, the Member arrived late to a senior administration meeting on April 6, 2018 and left early from a similar meeting on April 25, 2018. The Member failed to properly inform the Superintendent of these absences prior to the meetings and did not record them in SmartFind as he had been directed to do. The Member informed the Board that he was attending medical appointments at both of these times, and that his absences were unrelated to his relationship with Person A.

13. The Member was absent from the School on six other occasions between September 15, 2017 and April 25, 2018. The Vice-Principal and secretary were aware of these absences; however, the Member failed to inform the Superintendent prior to these absences and did not record them in SmartFind as required.

Neglect of Health and Safety Duties

14. Ontario’s Occupational Health and Safety Act requires the School to have a Joint Health and Safety Committee (the “Committee”). The Committee is required to inspect the physical conditions of the workplace on a monthly basis and meet four times per year. As Principal of the School and Management Co-chair of the Committee, the Member was responsible for ensuring that these requirements were met and properly documented.

Monthly Inspections

15. On June 28, 2018, a review of the School’s facilities software determined that numerous inspections for the 2017-2018 school year were showing as incomplete and overdue. The Superintendent emailed the Member the next day to confirm if the inspections were being completed each month as required and, if so, where they were recorded. The Member advised the Superintendent that the inspections had indeed taken place and offered to share the dates of the inspections once he regained access to his laptop.

16. The Member met with the Board on July 12, 2018 and was asked to confirm how many inspections had taken place that year. He guessed that there had been eight. The Member was given back his laptop and asked to find the dates of the inspections. He was unable to do so. The Member indicated that all inspections were initiated by the custodian as per new school policy that year and were on the custodian’s computer. The Member shared that the custodian struggled with using the new computer program and on two occasions, the Board’s Health and Safety Officer visited the School to assist her in generating the reports. The custodian would then forward the record to the Member who had ultimate responsibility for ensuring inspections took place and were properly documented.

Health & Safety Committee Meetings

17. The Member also failed to ensure that four Health & Safety Committee meetings were held during the 2017-2018 academic year.

18. Minutes for only two out of the four meetings were submitted. The Minutes, taken by the Member, related to meetings which were said to have occurred on September 15 and November 17, 2017. Minutes for these meetings were submitted by the Member to the Board’s Health and Safety Officer and, ultimately, to the Ministry of Labour for an audit. There were discrepancies in both sets of Minutes generated by the Member.

19. The September 15, 2017 Minutes listed six attendees. SmartFind showed that one attendee had been at a math workshop that day and the Member had been absent due to personal illness. Another individual listed as present at the meeting advised the Board that she did not attend.

20. Two individuals listed as present at the November 17, 2017 meeting advised the Board that they did not attend. The Minutes for this meeting were submitted by the Member to the Board on the day before the meeting was scheduled to occur.

21. The Member erred in recording Minutes for the other two meetings by improperly saving the Minutes and failed to keep the necessary recordings of the meeting.

22. The Member knew or ought to have known that the Minutes he submitted to the Board, in his capacity as Principal of the School and Management Co-chair of the Committee, contained false and misleading information.

23. The Member had no previous Health and Safety concerns noted by the employer

Board Discipline

24. The Member was issued a disciplinary letter dated August 16, 2018 informing him that he would be suspended for five days without pay and demoted to the position of Elementary Vice Principal. Attached as Exhibit “B” is a copy of the Board’s letter to the Member.

Retirement

25. The Member went on a medical leave of absence in September 2018 due to his underlying medical conditions. The Member retired from the Board on December 31, 2018, with the references attached hereto and marked as Exhibit “C”.

GUILTY PLEA

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

27. 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(10), 1(12), 1(13), 1(14), 1(15), 1(18), 1(19), and 1(26).

28. 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.

29. 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 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, on the basis that proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted the request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on September 22, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(10), 1(12), 1(13), 1(14), 1(15), 1(18), 1(19) and 1(26).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 25 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 had a sexual relationship with one of his teaching staff while he was her principal, neglected his professional duties, and repeatedly engaged in dishonest conduct.

9The Panel finds that the Member failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10). The Member was required to record his absences in SmartFind for tracking purposes, but on numerous occasions between September 15, 2017 and April 25, 2018, the Member was absent and failed to record his absences in SmartFind. Moreover, as Principal and Management Co-chair of the Health and Safety Committee, the Member was responsible for ensuring that monthly inspections of the physical conditions of the workplace were carried out, that health and safety requirements were met and properly documented, and that the Health and Safety Committee met four times annually. The Member failed to keep a record of the monthly inspections that had taken place during the 2017-2018 school year and he failed to ensure that the required number of meetings were held. He also failed to submit meeting minutes as required, and those that he did submit contained false and misleading information.

10The Member signed or issued, in his professional capacity, a document that he knew or ought to have known contained a false, improper or misleading statement, contrary to subsection 1(12) of Ontario Regulation 437/97. The Health and Safety Committee meeting minutes that the Member submitted to the Board’s Health and Safety Officer (and ultimately to the Ministry of Labour) contained false and misleading information. The Member submitted these minutes in his professional capacity, and was responsible for the discrepancies within them.

11The Member falsified a record relating to the Member’s professional responsibilities, contrary to subsection 1(13) of Ontario Regulation 437/97. In addition to submitting the above-noted meeting minutes, which he knew or ought to have known contained false and misleading information, the Member produced these minutes himself. He falsified the minutes by listing persons who were not present at those meetings as attendees. Moreover, in relation to the November 17, 2017 meeting, he submitted the minutes to the Board on the day before the meeting actually occurred. This leads to the inevitable conclusion that the Member fabricated the minutes of the November 17, 2017 meeting. The Panel therefore finds that the Member’s conduct was in violation of this provision.

12The Panel finds that the Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the professional and ethical standards for the teaching profession. In particular, the Member breached the ethical standards of “Integrity” and “Trust”. The ethical standard of “Integrity” provides that members are expected to conduct themselves with “honesty, reliability and moral action”. The ethical standard of “Trust” requires members to embody fairness, openness, and honesty in their professional relationships. The Member had a sexual relationship with Person A, his subordinate. The Member also engaged in a pattern of dishonest behaviour, which included: lying to the Board about his affair with Person A and that he had notified the Director of Education about this relationship; falsifying meeting minutes; and submitting those falsified minutes to the Board. The Panel finds that by engaging in such behaviour, the Member demonstrated a lack of integrity, and breached the trust which the Board had placed in him. As such, the Member’s conduct fell below the profession’s ethical standards.

13The 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) is commonly understood to mean that members of the teaching profession must behave with integrity and serve as positive role models within their school communities. The Member’s conduct was antithetical to these principles. As a principal, the Member was the lead role model of his school community, whose example was to be followed by teachers, students, and other members of his school community. By engaging in a pattern of dishonest behaviour and by having an extramarital affair with his subordinate, the Member acted as a poor role model. As such, his conduct was at odds with his duties as a member of the teaching profession.

14The 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. Disgraceful and dishonourable conduct includes conduct that this immoral or dishonest. It is unacceptable for a principal, who is in a trusted position, to falsify records, lie to his superiors, and have a sexual relationship with his subordinate. Such conduct cast doubt on the Member’s moral ability to practise the profession. The Member also demonstrated poor professional judgment by failing to inform his Superintendent of his absences as required, by failing to ensure that the required number of Health and Safety Committee meetings were held during the 2017-2018 academic year, and by spending many hours on the phone with Person A during school hours. Members of the teaching profession should always behave honorably and professionally in their school communities, which the Member repeatedly failed to do in this case. As such, the Panel finds that the Member’s conduct can properly be characterized as disgraceful, dishonourable and unprofessional.

15The Panel finds that the Member’s inappropriate conduct is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members (and especially administrators) who engage in dishonest behaviour and have sexual relationships with their staff undermine the reputation of the teaching profession. Such conduct also violates the trust that the public places in the profession.

16The Panel finds that the Member practised the profession while he was in a conflict of interest, contrary to subsection 1(26) of Ontario Regulation 437/97. The Panel finds that by having a sexual relationship with his subordinate, Person A, the Member placed himself in a situation that could affect his ability to exercise skill and good judgment in the performance of his duties, as a principal and as Person A’s superior. The Member’s conduct was therefore in violation of this provision.

PENALTY DECISION

17The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on September 22, 2021, 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 in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or 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 suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the 15^th 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. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;

3. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the facts of such terms, conditions or limitations to be recorded on the Register:

(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, appropriate boundaries with colleagues, and the responsibilities of administrators in relationships with staff, 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 or courses 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 or courses 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 or courses and reporting on the progress of the Member with respect to addressing the outlined goals of the course or courses.

F. REASONS FOR PENALTY DECISION

18The 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 its 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 College Counsel: Ontario College of Teachers v. Bozin, 2014 ONOCT 9; Ontario College of Teachers v. Burke, 2018 ONOCT 75; and Ontario College of Teachers v. MacKellar, 2017 ONOCT 76.

19The Panel considered the Member’s circumstances in comparison to the cases provided. Aggravating factors in the Member’s case are (1) the repeated nature of his dishonesty, and (2) the breadth of his unethical behaviour, which spanned from having a sexual relationship with his subordinate, to lying and deceiving others (including his employer) to cover his tracks. However, mitigating factors included that the Member admitted his misconduct, saving the time and expense of a contested hearing, and he had not been the subject of past discipline proceedings. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

20The Panel finds that the Member’s inappropriate conduct warrants a reprimand. Administrators are expected to always behave with integrity, and act as positive role models. The Member failed to do so by engaging in a pattern of dishonest behaviour, and by having a sexual relationship with his subordinate. 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.

21Given the nature and severity of the Member’s conduct, the Panel finds that a two-month suspension is reasonable and appropriate. While the cases presented were factually distinct, the misconduct represented in those cases were of similar underlying natures, and confirmed that a 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 clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on October 7, 2021, which is 15 days after the Panel’s Oral Decision and Order.

22The Panel finds that the course(s) of instruction regarding professional ethics, appropriate boundaries with colleagues, and the responsibilities of administrators in relationships with staff, will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a member and leader within the teaching profession, and will help him to make better decisions in his professional practice.

23The Panel is satisfied that the penalty is appropriate in the circumstances, and meets the principle of serving and protecting the public interest.

Date: September 24, 2021

Josée Landriault, OCT Chair, Discipline Panel

Jacqueline Boulianne, OCT Member, Discipline Panel

Ben Drory Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the hearing at the request of College Counsel.