DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 James Lindsay Ashwin, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JAMES LINDSAY ASHWIN (REGISTRATION #178187)
PANEL: Rebecca Forte, OCT, Chair Mary Ellen Gucciardi, OCT Tom Potter
HEARD: January 11, 2021 and February 2, 2021
Vincent DeMarco and Shane D’Souza, for the Ontario College of Teachers James Lindsay Ashwin, self-represented 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 January 11, 2021 and February 2, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2James Lindsay Ashwin (the “Member”) did not attend the majority of the hearing and did not have legal representation; however, following the Panel’s request, he did appear shortly before the Panel delivered its decision with respect to penalty, and he attended immediately after the hearing 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 May 13, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that James Lindsay Ashwin 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, 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. 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:
The Member 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”) in Toronto, Ontario.
During the 2017-2018 academic year, the Member was the Grade [XXX] teacher of a male student (the “Student”) at the School.
During the period from on or about October 30, 2017 to on or about December 13, 2017, Person A had a Practicum Teaching Placement with the School and was placed under the Member’s supervision.
Failure to Accommodate IEP
The Member attended a meeting with the School principal and a parent on November 21, 2017 to discuss the Student’s Individual Education Plan (“IEP”). As became clear to the other participants, the Member was unaware of the Student’s identified learning exceptionality and was unfamiliar with the accommodations afforded to the Student under his IEP. After the meeting had finished, the Member slammed the door as he exited the room.
The Student’s parent sent an email to the School administration after the meeting explaining that she felt upset by the Member’s behaviour and was afraid of how he would treat her son going forward. Attached hereto and marked as Exhibit “B” is a copy of the notes from a formal response meeting with the Member on December 4, 2017, during which the Member acknowledged that he had not read the Student’s IEP. The Member was issued a letter of reprimand dated December 11, 2017 in connection with this incident, which is attached hereto and marked as Exhibit “C”.
Conduct with Person A
The Member, on a number of occasions during Person A’s placement with him, touched Person A. In addition, the Member made a comment about hormones and human behaviour in the presence of Person A. Person A was uncomfortable as a result of his behaviour.
The Member was issued a letter of discipline dated February 22, 2018 advising him that he would be suspended without pay for a period of five days from February 23 to March 1, 2018 inclusive and would not be permitted to act as an Associate Teacher to students in Programs of Teacher Education for a period of five years. The Member’s suspension was grieved and later reduced to three days. Attached hereto as Exhibit “D” is a copy of the principal’s letter of discipline to the Member.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
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(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 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 [sic] 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 [sic] having had the opportunity to obtain the advice of legal counsel.
- 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. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as it was duplicative of the allegation under subsection 1(14). The Panel granted this request.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on February 2, 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 admitted the truth of the facts and exhibits referred to in paragraphs 1 to 8 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.
9The Member failed to comply with the College’s Bylaws, contrary to subsection 1(14) of Ontario Regulation 437/97, by breaching the standards articulated in the Ethical Standards for the Teaching Profession set out at section 32.02 of the Bylaws. Teachers are expected to uphold the Ethical Standards by demonstrating their commitment to students’ well-being and learning (“Care”) and by honouring human dignity, emotional wellness and cognitive development (“Respect”). When the Member did not familiarize himself with the accommodations afforded to the Student through his IEP, the Member failed to demonstrate commitment to the Student’s well-being and failed to demonstrate respect for the Student. This behaviour was inconsistent with the Ethical Standards.
10The Member failed to comply with section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. This section sets out the duties of a teacher and provides that, among their duties, teachers must assist in developing co-operation and co-ordination of effort among the members of the staff of the school. When the Member met with the School’s principal and the Student’s parent to discuss the IEP, it became clear that the Member was unaware of the Student’s identified learning exceptionality and was unfamiliar with the accommodations afforded to the Student under his IEP. The Member conducted himself in a discourteous manner and slammed the door on his way out of the meeting. As such, the Member failed to foster a collaborative work environment with colleagues to prioritize the Student’s needs.
11The Member’s conduct is disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. On a number of occasions, the Member made unwelcome physical contact with Person A. He also made a comment regarding hormones and human behaviour in Person A’s presence that made Person A feel uncomfortable. Through this conduct, the Member failed to maintain appropriate professional boundaries with Person A while she was assigned to complete her Practicum Teaching Placement under the Member’s professional guidance and supervision. Associate teachers are expected to serve as positive and professional role models for student teachers under their supervision. The Member’s unprofessional conduct caused Person A to feel distressed and upset, and to ultimately end her practicum placement early. It also reflected negatively on the reputation his Board as a suitable placement for aspiring teachers to complete their practicum placements.
12Finally, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The conduct described above undermines the reputation of the teaching profession and violates the trust that parents, students and the public place in teachers.
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 February 2, 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 is to 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 three (3) months commencing on the 15th 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;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:
(a) within ninety (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 or courses of instruction pre-approved by the Registrar regarding maintaining professional and appropriate boundaries with colleagues, anger management, and ethical and professional responsibilities related to students with identified needs, 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 thirty (30) days of his completion of the course or courses 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.
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 College Counsel: Ontario College of Teachers v. Béarez, 2019 ONOCT 17, Ontario College of Teachers v. Fair, 2016 ONOCT 21 and Ontario College of Teachers v. Nicolson, 2017 ONOCT 85.
15The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in this case. First, the Member’s misconduct involved the unwanted touching of Person A on more than one occasion. Second, associate teachers hold a unique position of power and authority when they are assigned to supervise and mentor student teachers to become future members of the teaching profession. By his conduct, the Member abused his position of power and was subsequently prohibited from acting as a supervisor to student teachers for five years. Third, the Member’s conduct involved a student with an IEP, a legally binding document that is specifically designed to support the individual learning needs of a student. The Member in this case did not meet the learning needs of a student assigned to his care and instruction because he failed to consult and implement the IEP. As for mitigating factors in this case, the Member admitted his misconduct, saving the time and expense of a contested hearing and 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 conduct, warrants a reprimand by his peers. The Member’s breach of professional boundaries with Person A, a student teacher completing her Practicum Teaching Placement under the Member’s guidance and supervision, as well as the Member’s failure to address the learning needs of a student are concerning to the Panel. 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 of the Member’s misconduct, the Panel finds that a three-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 kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on February 17, 2021, which is 15 days after the Panel’s Oral Decision and Order.
18The Panel finds that a course or courses of instruction regarding maintaining professional and appropriate boundaries with colleagues, anger management and ethical and professional responsibilities related to students with identified needs, are intended to assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations toward students and will help him to make better decisions in any future interactions with students, colleagues, parents and subordinates.
19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: February 4, 2021
Rebecca Forte, OCT Chair, Discipline Panel
Mary Ellen Gucciardi, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel