Ontario College of Teachers v. Elken, 2021 ONOCT 120

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Elken 2021 ONOCT 120

Date: 2021-11-03

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

Peter John Elken, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PETER JOHN ELKEN (REGISTRATION #393485)

PANEL: Irene Dembek, OCT, Chair Ben Drory Kevin McCarthy

HEARD: November 3, 2021

COUNSEL: Charlotte-Anne Malischewski, for the Ontario College of Teachers Philip Abbink, for Peter John Elken 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 3, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Peter John Elken (the “Member”) did not attend the hearing but had legal representation attend on his behalf. 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 September 19, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Peter John Elken 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 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);

(c) 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);

(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. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Peter John Elken 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 Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

3. At all material times, Colleague 1, Colleague 2, Colleague 3, and Colleague 4 were female teachers at the School.

Sexual Harassment of Colleague 1

4. During the 2016-2017 academic year, the Member engaged in sexual harassment of Colleague 1 when:

(a) he made inappropriate comments to Colleague 1 commenting on her body and/or appearance, including:

(i) “that looks hot on you”;

(ii) “you wear those jeans well”;

(iii) “it’s a good thing there are people around”;

(b) he touched Colleague 1 without her consent, including rubbing her arms, shoulders and back; and

(c) he hugged Colleague 1 on one occasion, without her consent and for a duration that made her uncomfortable.

5. The Member’s behaviour made Colleague 1 uncomfortable.

Sexual Harassment of Colleague 2

6. During the 2016-2017 academic year, the Member engaged in sexual harassment of Colleague 2 when:

(a) on one occasion while the Member and Colleague 2 were in the hallway at the School, the Member said, “hey hotness” to Colleague 2; and

(b) on another occasion, the Member rubbed Colleague 2’s arm without her consent and told her she was “hot”.

7. The Member’s behaviour made Colleague 2 uncomfortable.

Sexual Harassment of Colleague 3

8. During the 2016-2017 academic year, the Member engaged in sexual harassment of Colleague 3 when he made comments to Colleague 3 that made her uncomfortable, including when he told Colleague 3, “you are wearing my favourite jeans”, or words to that effect.

Sexual Harassment of Colleague 4

9. Between 2013-2017, the Member engaged in sexual harassment of Colleague 4 when he touched Colleague 4 without her consent, including when he rubbed her arms, shoulders and back.

10. The Member’s behaviour made Colleague 4 uncomfortable.

The Board’s Investigation

11. The Board’s Human Rights Office investigated the Member’s conduct and concluded that the Member engaged in unwanted sexualized banter and advances within the workplace, and that he should have known that his comments and actions were unwelcome and amounted to workplace harassment. The Board suspended the Member for five days, transferred the Member to a new school, and required the Member to review a number of Board policies. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated April 13, 2018.

PLEA OF NO CONTEST

12. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-11 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(14), 1(15), 1(18) and 1(19).

14. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

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

15. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

16. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

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. College Counsel stated that the Panel’s permission to withdraw subsection 1(5) was being sought because it would be duplicative in this case to proceed under both subsections 1(5) and 1(14), and the College is seeking a finding under subsection 1(14) only. The Panel granted the request.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 3, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in sexual harassment of his colleagues on multiple occasions.

9The Panel finds that the Member failed to comply with the Act or the regulations or the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. Sexually harassing colleagues is a clear breach of the Ethical Standards for the teaching profession, codified in section 32 of the College Bylaws. In particular, the Panel finds that the Member’s misconduct was contrary to the standard of “Respect”, which imparts on members the responsibility to honour human dignity and emotional wellness in their professional practice. The Member failed to comply with the standard of “Respect” by making inappropriate comments about his colleagues’ clothing, appearance, and bodies. The Member further showed complete disrespect towards his colleagues’ dignity and bodily autonomy by touching them without their consent.

10The 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 have a duty to inculcate by precept and example the highest regard for several virtues including morality and humanity. The Member’s inappropriate and degrading comments to his colleagues were contrary to this duty and contrary to his obligations as a member of the profession.

11The Member’s misconduct is disgraceful, dishonourable and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to act professionally by maintaining a safe and collegial work environment. The Member failed to do so by his misconduct. The Member acted disgracefully, dishonourably and unprofessionally by making sexually charged comments to his colleagues and touching them without their consent. This was completely unacceptable behaviour toward his colleagues and placed his colleagues in a very difficult and uncomfortable position.

12Similarly, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when members act inappropriately in the school community, which in this case involved the Member’s sexual harassment of his colleagues.

F. PENALTY DECISION

13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 3, 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 three (3) months commencing on the 15th 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 and sexual harassment in the workplace subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of Statement of Uncontested Facts and Plea of No Contest 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

14The 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. Bradley, 2019 ONOCT 73,² Ontario College of Teachers v. Fair, 2016 ONOCT 21, and Ontario College of Teachers v. Fazl, 2019 ONOCT 2.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the numerous instances of misconduct and the large number of victims of the Member’s sexual harassment. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing and he has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s pattern of inappropriate conduct towards his colleagues warrants a reprimand. Members are expected to maintain professional boundaries with their colleagues, which the Member failed to do by his misconduct. 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.

17Given the nature and severity of the Member’s misconduct, the Panel finds that a three-month suspension is reasonable and appropriate. While some of 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 three-month 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 November 18, 2021, which is 15 days after the Panel’s Decision and Order.

18The Panel finds that the course of instruction regarding boundary violations and sexual harassment in the workplace will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with colleagues. The coursework is intended to prevent the Member from committing professional misconduct in the future and, in so doing, will protect the public.

19The 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. 2Member’s Counsel noted that this decision was overturned on appeal. However, the length of the suspension was not the subject of that appeal and was not overturned as a result. The parties only relied on this decision to show the appropriate range for the length of a suspension for misconduct of a similar nature as in this case. As such, the Panel finds that this decision was helpful in defining that range.