Citation: Ontario College of Teachers v Yeung 2021 ONOCT 125

Date: 2021-11-04

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

Omar Zai-Tien Yeung, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

OMAR ZAI-TIEN YEUNG (REGISTRATION #497854)

PANEL: Wanda Percival, OCT, Chair

Rachelle Coleman

Yasser Leheta, OCT

HEARD: November 1, 2021

Danielle Miller for the Ontario College of Teachers

Philip Abbink for Omar Zai-Tien Yeung

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 November 1, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Omar Zai-Tien Yeung (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing, on November 1, 2021, for the delivery of his reprimand as agreed to by the parties. 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 Omar Zai-Tien Yeung 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);

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

(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).

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:

Omar Zai-Tien Yeung 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.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”).
At all material times, Student 1 was a Grade [XXX] female student in the Member’s class.
On December 20, 2017, during a [XXX] game in [XXX] class, Student 1 asked the Member if she could go to the washroom. The Member grabbed Student 1 by the arm, pulled her wrist and yelled at her to not interrupt him during a game. The Member’s actions left a red mark on Student 1’s wrist.
This incident caused distress to Student 1. Another student who witnessed the incident reported feeling unsafe in the [XXX] with the Member.

Prior History

On June 16, 2015, the Investigation Committee issued an admonishment to the Member for using inappropriate language and having inappropriate physical contact with two students.

PLEA OF NO CONTEST

By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-6 above (the “Uncontested Facts”).
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(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
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.

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.
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 the 1(5) allegation was being sought as it would be duplicative to pursue this allegation and the allegation that the Member contravened subsection 1(14) of Ontario Regulation 437/97. 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 1, 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) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 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 forcefully grabbed the wrist of Student 1 and yelled at her in front of her peers.

9The Member abused a student or students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. The Member yelled at Student 1 not to interrupt him during a [XXX] game. He yelled at Student 1 in front of her peers, thereby exposing the entire class to his inappropriate conduct. Teachers should refrain from yelling as a form of discipline or classroom management. Certainly, in this case, there was no immediate danger that the Member needed to stop or prevent. The Member yelled at Student 1 for asking to use the washroom. His reaction was completely uncalled for and inappropriate, and it was distressing to the Grade [XXX] student. It therefore amounted to verbal abuse.

10The Panel finds that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97 when he grabbed Student 1 by the arm and pulled her wrist with such force that he left a red mark on it. Teachers are responsible for the physical well being and safety of their students and must not use unnecessary physical force against students. It was physically abusive for the Member to use excessive physical force against Student 1, who simply interrupted his [XXX] game to ask if she could use the washroom.

11The Uncontested Facts demonstrated that the Member also contravened subsection 1(7.2) of Ontario Regulation 437/97. The Member’s aggressive behaviour towards Student 1 caused her distress and made another student who witnessed the incident feel unsafe in the [XXX] with the Member. Teachers must ensure the psychological and emotional safety and well being of their students. The Member’s actions had the opposite effect and amounted to psychological or emotional abuse.

12The Uncontested Facts demonstrate that the Member contravened the Ethical Standards for the Teaching Profession, which are set out at section 32.02 of the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. The ethical standard of “Care” provides that “Members express their commitment to students’ well being and learning through positive influence, professional judgment and empathy in practice.” The ethical standard of “Respect” requires members to “honour human dignity, emotional wellness and cognitive development.” The Member’s actions of forcefully grabbing Student 1 by the wrist and yelling at her in front of her peers was antithetical to these ethical standards. He did not show empathy toward Student 1 or respect her dignity. He did not honour the emotional wellness and cognitive development of Student 1 or that of the students witnessing his actions. The Member caused Student 1 distress and made another student feel unsafe. He demonstrated poor professional judgment through his inappropriate and abusive conduct.

13The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which identifies the duties of a teacher. Section 264(1)(b) requires teachers to encourage students in the pursuit of learning. Section 264(1)(c) requires teachers to be a model of virtuous behaviour. Section 264(1)(e) requires teachers to maintain proper order and discipline in their classroom and while on duty in the school and on the school ground. Yelling at and using unnecessary physical force against a student are not proper techniques for classroom management. They are harmful behaviours, which set a poor example for students. Members are expected to show patience, maturity, and control over their emotions. The Member’s actions had a negative impact on Student 1 and made another student in the class feel unsafe, thereby creating a negative and intimidating learning environment that was not conducive to student learning. Members need to create a safe space for student learning.

14The Member’s conduct was disgraceful, dishonourable and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The parties agreed and the Panel accepts that the Member’s misconduct can be characterized by all three terms in this instance. The Member demonstrated poor moral and professional judgment by grabbing and yelling at a student in front of her peers.

15The Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members are entrusted by the public to safeguard the well being of students under their care. They hold a unique position of trust and authority. The Member’s abusive conduct eroded the trust and confidence that the public bestows upon members of the teaching profession to keep children safe at school.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 1, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

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”).
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one (1) month commencing on the 15^th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter.
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) prior to commencing or returning to a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management, anger management and professional ethics, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the 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

17The 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. Van Eppinghoven, 2020 ONOCT 139; Ontario College of Teachers v. McPherson, 2019 ONOCT 11; and Ontario College of Teachers v. Allen, 2019 ONOCT 82.

18The Panel considered the Member’s circumstances in comparison to the cases provided. In terms of mitigating factors, the Member did not contest his misconduct. In reaching a joint resolution, the Member has spared young witnesses from having to testify and has saved the time and expense of a contested hearing. The misconduct in question was an isolated incident against Student 1. The aggravating factors in the Member’s case are the young age of Student 1 and that the Member had previously received an admonishment from the College’s Investigation Committee for using inappropriate language and having inappropriate contact with two students. After considering these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s misconduct, namely yelling at Student 1 and forcefully grabbing her wrist thereby causing her to feel distress and causing another student to feel unsafe, warrants a reprimand. Abuse of students, whether verbal, physical, psychological or emotional is unacceptable. To inflict harm on students undermines the principles for which the teaching profession stands. The Panel is particularly concerned that the Member did not improve his classroom management methods after having received an admonishment from the Investigation Committee for engaging in similar behaviour. 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 also serves as a general deterrent to other members of the profession.

20The Panel finds that a one-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 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 type of misconduct the Member demonstrated is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on November 16, 2021, which is 15 days after the Panel’s Decision and Order.

21The Panel finds that the course of instruction regarding classroom management, anger management and professional ethics will assist in the Member’s rehabilitation, should he return to a Teaching Position. The coursework will remind the Member of his obligations as a teacher to model self-control and prioritize the safety and well being of students. The Panel expects that the course will help the Member make appropriate decisions in any future interactions with students.

22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: November 4, 2021

Wanda Percival, OCT

Chair, Discipline Panel