Ontario College of Teachers v. Fitzhenry, 2021 ONOCT 116

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Fitzhenry 2021 ONOCT 116 Date: 2021-10-28

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 Stanley Michael Fitzhenry, a member of the Ontario College of Teachers.

Between:

Ontario College of Teachers

– and –

Stanley Michael Fitzhenry (Registration #470737)

Panel: Rebecca Forte, OCT, Chair Anne Resnick Kimberley Westfall-Connor

Heard: October 22, 2021

Counsel: Ava Arbuck, for the Ontario College of Teachers No one appearing for Stanley Michael Fitzhenry 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 October 22, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Stanley Michael Fitzhenry (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.

3Two Notices of Hearing dated August 5, 2019 (Exhibit 1) and March 3, 2020 (Exhibit 2) were served on the Member, specifying the allegations, and requesting his presence on a date to be determined for the hearing. The hearing with respect to the allegations set out in both Notices of Hearing was subsequently set for October 22, 2021. With the consent of the parties, pursuant to section 9.1(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, the Panel agreed to proceed with a single hearing to address the allegations of professional misconduct set out in the two Notices of Hearing.

A. Publication Ban

4The 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

5The allegations against the Member in the Notice of Hearing dated August 5, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Stanley Michael Fitzhenry is guilty of professional misconduct as defined in the Act in that:

(a) he provided false information or documents to the College or any other person with respect to the member’s professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1);¹

(b) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);²

(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);³

(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).

6The allegations against the Member in the Notice of Hearing dated March 3, 2020 (Exhibit 2) are as follows:

IT IS ALLEGED that Stanley Michael Fitzhenry is guilty of professional misconduct as defined in the Act in that:

(a) 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);

(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 contravened a law, the contravention of which is relevant to the member’s ability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(d) 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);

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

C. Agreed Statement of Facts

7College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Stanley Michael Fitzhenry 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. During the 2016-2017 academic year, the Member was employed by the Windigo Education Authority (the “Authority”) as a teacher at Martin McKay Memorial School (the “School”) in Sachigo Lake, Ontario.

3. During the 2016-2017 academic year, Person 1 was the Principal at the School.

The Reference Letter:

4. In the summer of 2017, the Member applied in his professional capacity for a new teaching position with the Northwest Catholic District School Board at Sacred Heart School in Sioux Lookout, Ontario. In support of the application, the Member submitted an unsigned letter of reference purported to be authored by Person 1.

5. The letter of reference had been authored by the Member and recommended the Member “without reservation”. Attached hereto and marked as Exhibit “B” is a copy of the letter of reference submitted by the Member.

6. In September or October of 2017, the Vice Principal at Sacred Heart School contacted Person 1 and advised that she was checking the Member’s letters of reference. When Person 1 advised that she had not written a letter of reference for the Member, the Vice Principal sent Person 1 a copy of the letter submitted by the Member with his application. Upon her review of the letter, Person 1 confirmed that she had neither seen nor authored the letter, the contents of which did not accord with Person 1’s experience with the Member.

7. Person 1 acknowledged that she could not recall if the Member asked her if he could write a reference letter on her behalf. Her general practice in that circumstance is to review the letter for accuracy, sign it and send it directly. She confirmed that she had neither reviewed nor authored the letter.

8. The Authority became aware that the Member had provided a false reference letter after the Member was no longer employed at the Authority. No disciplinary measures were imposed against the Member by the Authority.

Criminal Conviction for Arson:

9. On July 26, 2018, the Member set fire to his neighbour’s vehicle. A dash camera installed in the vehicle captured the Member approaching the vehicle with a lighter and a newspaper. Shortly thereafter, the Member walked away holding only the lighter.

10. On February 1, 2019, the Member pleaded guilty to and was found guilty of one count of arson, contrary to s. 434 of the Criminal Code (Canada).

11. Attached hereto and marked as Exhibit “C” is a certified copy of the Court Information dated August 1, 2018. Attached hereto and marked as Exhibit “D” is a copy of the Transcript of the Guilty Plea before the Honourable Justice A.L. Buttazzoni in the Ontario Court of Justice, dated February 1, 2019.

12. On May 17, 2019, the Member received a suspended sentence and 36 months of probation, plus ancillary orders. His probation order included terms requiring the Member to attend counselling, to perform 240 hours of community service, and to pay restitution in the amount of $5,576.03 to the victims.

13. Attached hereto and marked as Exhibit “E” is a copy of the Sentencing Hearing and the Reasons for Sentence before the Honourable Justice A.L. Buttazzoni in the Ontario Court of Justice, dated May 17, 2019. Attached hereto and marked as Exhibit “F” is a copy of the Member’s Certificate of Conviction dated August 8, 2019. Attached hereto and marked as Exhibit “G” is a certified copy of the Member’s Probation Order dated May 17, 2019.

14. The Member did not appeal his conviction or sentence. Recently, the Member successfully completed the Kizhaay Anishinaabe Niin 12-Week Program, “I Am A Kind Man”. Attached hereto and marked as Exhibit “H” is a copy of the Certificate of Achievement.

15. The Member has retired from the College, effective September 18, 2019.

GUILTY PLEA

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

17. 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(12), 1(14), 1(15), 1(16), 1(18), and 1(19).

18. 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.

19. 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

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (d) of the Notice of Hearing dated August 5, 2019, namely that the Member contravened subsections 1(1), 1(5) and 1(13) of Ontario Regulation 437/97 be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegations with respect to subsection 1(1) and 1(13) of Ontario Regulation 437/97 was being sought, both as a by-product of negotiations and because the evidence better supported a finding that the Member had breached subsection 1(12) of Ontario Regulation 437/97. College Counsel stated that the Panel’s permission to withdraw the allegation with respect to subsection 1(5) of Ontario Regulation 437/97 was being sought because it was duplicative with the allegation that the Member had contravened subsection 1(14) of Ontario Regulation 437/97. The Panel granted these requests to withdraw the allegations set out above.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on October 22, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(12), 1(14), 1(15), 1(16), 1(18), and 1(19).

E. Reasons for Decision

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 15 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 authored and submitted a false letter of reference while applying for a new teaching position, and that he also committed the criminal offence of arson.

11The Member contravened subsection 1(12) of Ontario Regulation 437/97 when he submitted as part of his application for a new teaching position, an unsigned reference letter purportedly from Person 1, recommending the Member “without reservation”. Person 1 advised the Vice Principal who conducted the reference check that she had neither seen nor authored the letter and that she did not agree with its contents. The Member was fully aware that this document contained false, improper or misleading statements as the Member authored it himself.

12The Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening the Ethical Standards for the Teaching Profession, which are set out in section 32 of the Bylaws of the Ontario College of Teachers. The ethical standard of “Trust” embodies fairness, openness, and honesty, and is the basis of teachers’ professional relationships with students, parents or guardians, and the public. The ethical standard of “Integrity” refers to honesty, reliability, and moral action as core values of the teaching profession. Providing a false reference letter is a flagrant act of dishonesty. It shows no integrity on the part of the Member and does not inspire confidence in the Member’s trustworthiness. The ethical standard of “Respect” requires members to model moral values, including freedom, justice, and human dignity. Committing arson shows a lack of care for other persons, as well as for the law and does not set an appropriate example for students.

13The Member’s conduct as described above contravenes subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97 which sets out the duties of a teacher. Subsection 264(1)(c) of the Education Act requires teachers to set an example for students and the public by acting as positive role models. Teachers must exemplify moral values both on and off duty. By falsifying a letter of reference and committing arson, the Member failed to exemplify an upright moral character. The Member’s dishonest and criminal actions were the antithesis of the duties of a teacher.

14The Panel finds that the Member contravened a law, the contravention of which is relevant to the Member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16). The Member’s criminal offence of arson was intentional, dangerous, and put the public at risk. Members of the College are responsible for the safety, wellbeing, and development of their students and the Member’s actions demonstrate he is not suited to hold the important and trusted position of a teacher within his community.

15The Panel finds that the Member’s behaviour was disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s acts of providing a false reference letter and committing arson demonstrate not only a lack of professional judgment and disregard for his professional duties; they were intentional acts that show moral turpitude. The Panel agrees with the parties that the Member’s misconduct is rightfully characterized by all three terms.

16Similarly, the Panel finds that the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The public expects teachers to have the maturity to exercise good judgment, honesty, and self-control and that they will teach students, by example, to do the same. The Member intentionally set fire to his neighbour’s vehicle in retaliation toward her. He also provided a false reference letter to advance his own interests. The Member’s misconduct completely eroded his trustworthiness and the confidence the public can place in teachers.

F. Penalty Decision

17The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on October 22, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member;

2. The Member is directed to receive a written reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

G. 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 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 College Counsel: Ontario College of Teachers v. Callaghan, 2013 ONOCT 11, Ontario College of Teachers v. Trahan, 2002 ONOCT 31; Ontario College of Teachers v. Canacari, 2017 ONOCT 4; and Ontario College of Teachers v. Oliphant, 2019 ONOCT 72.

19The Panel considered the Member’s circumstances in comparison to the cases provided. In terms of mitigating factors, the Member has been a member for 17 years before resigning in 2019 and has not previously been the subject of discipline proceedings. The Member admitted his misconduct and has taken responsibility for his actions. By entering into a resolution with the College, the Member has spared witnesses from having to testify and saved the parties the time and expense of a contested hearing. The aggravating factors in the Member’s case are that the Member’s misconduct with respect to both the letter of reference and the arson was intentional. In the case of the arson, the Member’s reckless and irrational actions endangered the lives of his neighbours and caused significant emotional and financial harm to the victim, who continues to fear for her safety and that of her family (see Exhibit 3, Exhibit E). After weighing these factors, the Panel finds that the penalty proposed by the parties is reasonable.

20Given the nature and severity of the Member’s conduct, the Panel finds that it is appropriate that the Registrar immediately revoke the Member’s Certificate of Qualification and Registration. 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 revocation is justified. The Member’s actions were egregious. Honesty, trustworthiness, and self-control are paramount for teachers, who are responsible for the safety of students and who are expected to be positive role models. Criminal conduct, whether it occurs in or out of the classroom, will not be tolerated by the College. The revocation will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kinds of misconduct the Member exhibited is unacceptable. Through his dangerous, criminal conduct, the Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario. In accordance with the parties’ joint submission, the Member’s revocation will take effect immediately.

21The Panel also finds that the Member’s inappropriate conduct warrants a reprimand. As a role model in a position of trust and authority, teachers must be mindful to set an appropriate example at all times and adhere to the highest moral standards. The Member’s dishonest and destructive actions showed a lack of professional judgment and disregard for his professional obligations. The reprimand will allow the Panel to directly address its concerns with the Member. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession. In relation to the form of the reprimand, the Panel finds that a written reprimand is appropriate given the parties’ agreement.

22The 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.