DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Boyce 2021 ONOCT 112

Date: 2021-09-22

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 Andrew Boyce, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID ANDREW BOYCE (REGISTRATION #212920)

PANEL: Wanda Percival, OCT, Chair Azeem Khan Emile Ramlochan

HEARD: September 15, 2021

Danielle Miller, for the Ontario College of Teachers Andrea Wobick, for David Andrew Boyce 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 15, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2David Andrew Boyce (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 January 21, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that David Andrew Boyce 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 or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;²

(f) he engaged in sexual misconduct as defined in section 1 of the Act;

(g) 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);³

(h) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(i) 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);

(j) 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);⁴ and

(k) 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 Andrew Boyce 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 Durham District School Board (the “Board”) as a Teacher at [XXX] School (the “School”).

3. At all material times, the Member was the School’s [XXX] coach. Students 1, 2, 3, 4, and 5 were female members of the School [XXX] team and were coached by the Member.

Inappropriate Interactions with Student 1

4. During the 2015-2016 academic year, when Student 1 was in Grade [XXX], the Member took Student 1 aside during a [XXX] game and yelled at her. This had a negative impact on Student 1.

Inappropriate Interactions with Student 2

5. On January 13, 2017, as Student 2 was leaving the [XXX] during a [XXX] tournament at another school, the Member tapped her buttocks with a clipboard. Student 2 was embarrassed by this.

6. On February 3, 2017, the [XXX] players were asked to bring food items for a team lunch. Student 2 brought hamburger buns. The Member commented to Student 2, “nice buns [Student 2]”. The Member’s comment made Student 2 feel uncomfortable and embarrassed.

Inappropriate Interaction with Student 3

7. On March 8, 2017, while Student 3 was [XXX] after the [XXX] of a game, the Member tapped the buttocks of Student 3 with a clipboard and said “good job”. This made Student 3 feel uncomfortable.

Inappropriate Interaction with Student 4

8. On January 13, 2017, the team attended a [XXX] tournament at another school. When Student 4 fixed her bra padding during a timeout, the Member said words to the effect of “stop playing with your boobs” to her. This comment was made in front of, and overheard by, other students. Student 4 was embarrassed by this comment.

Inappropriate Interaction with Student 5

9. During the same tournament on January 13, 2017, following the above comment to Student 4, the Member said to Student 5 words to the effect of, “why are you always touching yourselves?”. Student 4 overheard this comment. Student 4 and 5 were negatively impacted by this exchange.

Inappropriate Language

10. The Member swore in front of students on several occasions including saying the words “fuck” and “shit”.

11. On February 22, 2017, the Member said “fuck [student], great way to start the game” after the student [XXX] at the beginning of the game. This comment was made in front of the entire [XXX] team and negatively impacted the students on the team.

Investigation Committee Reminder to the Member

12. On January 28, 2016, the Investigation Committee of the Ontario College of Teachers issued a reminder to the Member to ensure that his comments to students are appropriate and not subject to misinterpretation.

Board Warning to the Member

13. As a result of the Member’s conduct, on May 16, 2017, the Member was given a verbal warning by the Board, directing him not to engage or participate in school-based coaching or extra-curricular activities and administratively transferring him to another school. The Member was further encouraged to pursue boundaries training, which he completed.

14. The Member has continued to teach for the Board to the present time.

GUILTY PLEA

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

16. 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(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) (unprofessional) and 1(19). The Member further admits that the conduct in paragraphs 5 - 9 constitutes sexual misconduct as defined in Section 1 of the Act.

17. 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.

18. 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), (e) and (g) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(7.3) and 1(11) of Ontario Regulation 437/97, and/or that the Member engaged in sexual abuse of a student as defined in section 1 of the Act, be withdrawn.

7College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought because proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted this request.

8With respect to the sexual abuse allegations at subsection 1(7.3) and section 1 of the Act, College Counsel submitted the Member’s misconduct was more appropriately characterized as sexual misconduct and not sexual abuse. According to College Counsel, sexual abuse contemplates behaviour or remarks of a sexual nature that are directed toward a specific student; whereas sexual misconduct refers to exposing students to behaviour or remarks of a sexual nature and captures conduct that is not targeted toward specific students. College Counsel submitted that the Member’s actions were not specifically targeting a particular student, but rather that the Member engaged in a pattern of behaviour in which he indiscriminately exposed female players of the [XXX] team that he coached to inappropriate comments and behaviour with sexual overtones. In light of College Counsel’s submissions, the consent of the Member to the withdrawal, and the Member’s guilty plea to the allegation of sexual misconduct, the Panel determined that it was appropriate to grant the request to withdraw the sexual abuse allegations.

9College Counsel requested to withdraw the subsection 1(11) allegation, because there is no evidentiary basis for a finding that the Member failed to adequately supervise students. The Panel granted this request.

10Lastly, with respect to the subsection 1(18) allegation, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Panel also granted this request.

11Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on September 15, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97 subsections 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) (unprofessional) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.

E. REASONS FOR DECISION

12The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 14 of the Agreed Statement of Facts and Guilty Plea and admitted to the allegations of professional misconduct against him, other than those that the College withdrew. 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 used inappropriate language when speaking to, or in front of, students. In relation to Student 2, Student 3, Student 4 and Student 5, the Member made inappropriate physical contact and uttered remarks that amount to sexual misconduct.

13The Panel finds that the Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97, by the way in which he spoke and interacted with the female students that he coached. For example, during a [XXX] game, the Member took Student 1 aside and yelled at her. There is no excuse for teachers to yell at students in any setting, including when coaching extra-curricular sports. The Panel finds that such conduct constitutes verbal abuse. The Member also used the words, “fuck” and “shit” in front of students on several occasions. During one incident, the Member directed profanity at a student by saying “fuck [student] great way to start the game” when the student’s [XXX]. The Panel finds that the Member’s use of profanity and his sarcastic comment about a student’s athletic performance are both insulting and demeaning and constitute verbal abuse.

14The Panel finds that the Member abused students physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97, when he tapped Student 2 and Student 3’s buttocks with a clipboard during two separate [XXX] games. While there may be some context for this gesture in a sports setting, tapping female students on an intimate part of their bodies is a completely inappropriate way for a teacher to signal praise. Given the power imbalance between teachers and students, the Member’s unwanted and unnecessary physical intrusion was a violation of these students’ personal bodily integrity and therefore constitutes physical abuse.

15The Panel finds that the Member psychologically or emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The female students on the school’s [XXX] team were regularly made to feel uncomfortable or embarrassed by the Member’s conduct toward them both individually and as a team. When the Member cursed and disparaged a student for missing a [XXX] during a game, yelled at Student 1 during a game, and tapped Student 2 and Student 3’s buttocks with a clipboard it embarrassed the students and made them feel uncomfortable. The Member similarly made other players uncomfortable when he made uncalled-for comments about their bodies, including telling Student 4 to “stop playing with your boobs” in front of the team, and then during the same game, said to Student 5 in reference to her and her teammates: “why are you always touching yourselves?” (which was overheard by Student 4). The Member also said to Student 2 “nice buns” after she brought hamburger buns to a [XXX] team lunch, which made her feel uncomfortable and embarrassed again. The Panel finds that these comments, including the sexual innuendo which would have been obvious to teenage girls, had a negative impact on individual students and on the entire team. It is emotionally abusive for a teacher and coach to regularly behave in a manner that makes students feel embarrassed or uncomfortable while participating in extra-curricular sports at school. The Member’s conduct therefore amounts to psychological or emotional abuse of students.

16The Panel finds that the Member’s conduct constitutes sexual misconduct as defined in Section 1 of the Act. “Sexual misconduct” is defined in the Act as:

inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,

(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks,

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.

17The Member exposed female students to behaviour or remarks of a sexual nature by making comments with sexual overtones and by tapping students on the buttocks with his clipboard, which College Counsel submitted gave rise to an uncomfortable atmosphere in the Member’s presence. The College and the Member agree that these actions by the Member can be considered inappropriate behaviour or remarks of a sexual nature that is not sexual abuse. When the Member quipped “nice buns” to Student 2 in front of her teammates, he referred indirectly to Student 2’s buttocks in a sexual way, which was distressing to the student. Additionally, the Member’s remark to Student 4 about playing with her “boobs” was uttered in front of teammates in a [XXX] during a tournament. Further, the remark to Student 5 about [XXX] players “always touching” themselves was also uttered during that same tournament and overheard by Student 4. Finally, when the Member made physical contact with students’ buttocks with a clipboard, he made uninvited contact with an intimate part of the body, which also occurred in front of teammates. The Panel finds that a reasonable person would expect that making sexualized comments to teenaged students or tapping them on an intimate part of the body would: (i) cause distress to students, (ii) be detrimental to the mental well-being of students exposed to such behaviour or remarks or (iii) create a negative environment at school. The Panel finds that in this case, the evidence demonstrates that students were in fact impacted by the Member’s conduct in all three ways. The Panel therefore finds that the Member engaged in sexual misconduct.

18The Member failed to comply with the Act, regulations or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97, by contravening section 32 of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. In accordance with the ethical standards, members are expected to demonstrate their commitment to students’ well-being (“Care”) and to honour human dignity, emotional wellness and cognitive development of students (“Respect”). By repeatedly making inappropriate, demeaning or sexualized comments to his players and touching students inappropriately, the Member demonstrated a lack of care and respect for the well-being of students. His actions also failed to foster a safe and supportive learning environment, contrary to the standards of practice for the teaching profession.

19The 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 of the teaching profession hold a unique position of trust and authority. They are required to encourage students in the pursuit of learning and to act as positive role models who exhibit strong moral values and a high level of integrity, as described at subsections 264(1)(b) and (c) of the Education Act. A coach of an extra-curricular sports team at school is no less a teacher and,by referring to female body parts in a pejorative way (“boobs”), making comments with sexual overtones to female [XXX] players, yelling at players or belittling players who make mistakes during a game, the Member’s actions were contrary to these duties. He set a poor example of sportsmanship for students, discouraged students from developing their athletic skills, and created a negative school experience for students both at his own school and at other schools where the team participated in [XXX] tournaments.

20The Panel finds that the Member’s conduct is disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Panel accepts College Counsel’s submission that the Member’s conduct is properly characterized as unprofessional. Members are expected to interact with students in a professional manner and to exercise good judgment, including in their role as coaches of school sports teams. The Member should have taken greater care when making comments to students, as he was previously reminded by the Investigation Committee of the Ontario College of Teachers in 2016 to monitor his comments to students. The Member nevertheless continued to demonstrate a lack of insight by making inappropriate comments to the [XXX] players that he coached. The Member’s conduct was contrary to his professional training and failed to demonstrate the good judgment expected of a teacher or coach. By his behaviour, the Member failed to maintain appropriate and professional boundaries and to prioritize the well-being and safety of students. The Panel therefore finds that the Member’s conduct is unprofessional.

21Finally, 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 diminished when teachers engage in a pattern of behaviour that makes students uncomfortable playing sports at school.

F. PENALTY DECISION

22The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on September 15, 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 shall 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 six (6) months commencing on the 15^th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter.

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

(a) within 120 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 boundary violations 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 thirty (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

23The 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. Gacich, 2021 ONOCT 16, Ontario College of Teachers v. Baker, 2021 ONOCT 59, Ontario College of Teachers v. Lewsaw, 2019 ONOCT 35, Ontario College of Teachers v. Burke (29 July 2021)⁵,and Ontario College of Teachers v. Eltis, 2016 ONOCT 58.

24The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. First, the Member’s conduct was not a momentary lapse in judgment but a pattern of behaviour in which the Member showed disrespect for several female students by engaging in sexualized interactions with them. Second, the Member’s behaviour caused emotional harm to students, which demonstrates a lack of awareness of the seriousness of the Member’s conduct and a failure to remediate it on his own. Third, the Member’s conduct occurred in front of an audience of students, which increased the impact of the Member’s behaviour and the embarrassment and discomfort that the students experienced. Finally, the Member was subject to an investigation by the College’s Investigation Committee regarding inappropriate communication with students in 2016, and a year later the Member continued to demonstrate similar behaviour, notwithstanding the reminder he had received from the Investigation Committee about appropriate communication with students.

25In terms of mitigating factors, the Member entered into a resolution with the College, saving student witnesses from having to testify and the time and expense of a contested hearing. Further, by participating in the hearing and pleading guilty to the allegations, the Member took responsibility for his conduct. Finally, the Member has not been the subject of discipline proceedings in the past. Member’s Counsel submitted as a mitigating factor that the Member completed boundaries training after being encouraged by the Board to do so. The Panel finds the Member’s actions following the Board’s response to his conduct was neither aggravating nor mitigating. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

26The Panel finds that the way the Member related to students and the uncomfortable atmosphere that his actions created for students warrant a reprimand. A 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.

27Given the nature and severity of the Member’s misconduct, the Panel finds that a six-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension in the range of six months 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 September 30, 2021, which is 15 days after the Panel’s Decision and Order.

28The Panel finds that the course of instruction regarding boundary violations will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him make better decisions in any future interactions with students.

29The 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 College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Allegation withdrawn at College Counsel’s request.
4. 4Allegation narrowed to “unprofessional” only.
5. 5Not yet published on legal databases.