Ontario College of Teachers v. Sullivan, 2021 ONOCT 133

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Sullivan 2021 ONOCT 133

Date: 2021-11-05

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 Timothy Cyril Sullivan, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

TIMOTHY CYRIL SULLIVAN (REGISTRATION #420619)

PANEL: Tom Potter, Chair Linda Staudt, OCT Kimberley Westfall-Connor

HEARD: October 28, 2021

Christine Wadsworth, for the Ontario College of Teachers Jack Brown, for Timothy Cyril Sullivan 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 28, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Timothy Cyril Sullivan (the “Member”) did not attend the hearing but 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 June 27, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Timothy Cyril Sullivan is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(c) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264 thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) 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);

(f) 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. Timothy Cyril Sullivan 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 Grand Erie District School Board (the “Board”) as a [XXX]teacher at [XXX]School (the “School”) in[XXX], Ontario.

Use of Instructional Time to Present Personal Beliefs

3. On February 25, 2015, the Member received a disciplinary letter from the Principal of the School concerning inappropriate interactions with students, including inappropriate use of class time to present his personal one-sided views about vaccines. Among other things, the Member was directed to present all sides of controversial topics, to avoid sharing one-sided personal opinions, and to avoid spending class time on his own personal agendas. A copy of the February 25 discipline letter is attached hereto and marked as Exhibit “B”.

4. On April 10, 2015 the Member received a disciplinary letter from the School Principal arising from the Member’s conduct on March 9, 2015. In the letter, the Member was specifically directed not to discuss vaccines with students in the future. The Member was also directed to avoid sharing strong personal or one-sided opinions, and to treat students professionally and with respect at all times. A copy of the April 10 discipline letter is attached hereto and marked as Exhibit “C”.

5. During the 2018-2019 academic year, some of the students from the Member’s [XXX] classes reported concerns to the Principal because they felt that the Member repeatedly spent class time presenting his own personal beliefs to the students rather than focusing on the prescribed course content.

6. In May 2019, the Member distributed an article entitled, “The Untold Story of Measles” to his Grade [XXX] classes. The Member also discussed the article and its contents with his Grade [XXX] classes. This article does not present a balanced perspective in relation to the use of vaccines. Attached hereto and marked as Exhibit “D” is a copy of the article.

7. In addition to discussing the article described above, the Member discussed the measles vaccine with the students in his Grade [XXX] and Grade [XXX] classes, focusing on what he viewed as the negative effects of that vaccine. He also told the students that:

(a) vaccines cause autism;

(b) vaccines have a 100% failure rate;

(c) a vaccine is responsible for his development of [XXX];

(d) vaccines may cause death.

8. The information described in paragraphs 6 and 7 is not based on the applicable curriculum for those classes and is inconsistent with the prescribed curriculum.

9. On or about May 28, 2019, the Member told the students in one of his Grade [XXX] classes that he had heard someone at the School say that “anybody who doesn’t vaccinate is fucking retarded”. The Member felt that he was being called “retarded” indirectly because of his views on vaccines.

10. In May 2019, the Member inappropriately used the Board’s resources to print two copies of a 230 page article entitled, “Truth Will Prevail: To Vaccinate or Not to Vaccinate,” for his personal use. The article was not related to the curriculum and would not have been suitable for teaching students. Attached hereto and marked as Exhibit “E” is a copy of the cover of the article.

11. During the 2018-2019 academic year, the Member stated the following to students in his Grade [XXX] and Grade [XXX]classes:

(a) that mental health conditions, including depression and/or anxiety, are not “real” health issues, or words to that effect;

(b) that it is the fault of the individual for suffering from depression and/or anxiety;

(c) that medical treatment for mental health issues is not beneficial;

(d) that asthma is not “real,” or words to that effect;

(e) that people who commit suicide and/or people who commit mass shootings have taken anti-depressants.

12. The information described in paragraph 11 is not based on the applicable curriculum for those classes and is inconsistent with the prescribed curriculum.

Use of Disrespectful Language in the Classroom

13. During the 2018-2019 academic year, the Member frequently used inappropriate and disrespectful language during his classes. Among other things, the Member would tell students to “shut up,” “shut the hell up”, and “shut your damn mouth,” if he was interrupted by a student.

School Investigation and Board Discipline

14. Attached hereto and marked as Exhibit “F” are copies of handwritten statements by students in the Member’s classes during the 2018-2019 academic year describing their experiences in the Member’s classes.

15. Attached hereto and marked as Exhibit “G” are copies of videos taken by students in the Member’s classes of some of the Member’s statements about vaccines.

16. As a result of the Member’s conduct as described in paragraphs 3-13 above, the Board suspended the Member for a period of 10 days without pay. Attached hereto and marked as Exhibit “H” is a copy of the Board’s discipline letter dated June 21, 2019.

Prior College Disciplinary Proceeding

17. On May 31, 2017, the Member was found guilty of professional misconduct. The Discipline Committee found that on March 9, 2015 the Member had multiple disruptive and disrespectful interactions with health unit staff and students who were present at an immunization clinic at the School, in order to express his strongly-held views about vaccines. The Member left his classroom unattended twice in order to question the nurses at the vaccination clinic. He expressed his views on vaccines to students, which included that students should not get the vaccine because vaccines can cause death. The Discipline Committee found that the Member’s communication was “aggressive and fear-provoking” and that his conduct reasonably alarmed the nurses and some students. The Member was ordered to attend before the Discipline Committee for an oral reprimand, his Certificate of Qualification and Registration was suspended for a period of one month, and he was required to complete coursework in the areas of appropriate professional boundaries, professional ethics, and self-regulation. Further, it was ordered that the Member was prohibited from attending any health clinic at a school where he was employed for a period of two years from the date of the decision. Attached hereto and marked as Exhibit “I” is a copy of the Discipline Committee decision dated May 31, 2017.

18. The Member’s conduct on March 9, 2015 as described in paragraph 17 was the subject of the disciplinary letter from the School mentioned at paragraph 4 above.

Unsuccessful Appeals of the Discipline Committee’s May 31, 2017 Decision

19. The Member appealed the Discipline Committee’s decision to the Divisional Court. The Divisional Court dismissed the Member’s appeal from the bench on February 7, 2018.

20. The Member then requested leave to appeal to the Ontario Court of Appeal. The Court of Appeal denied the request for leave to appeal on September 7, 2018.

21. The Member then requested leave to appeal to the Supreme Court of Canada. The Supreme Court denied the request for leave to appeal on May 23, 2019.

PLEA OF NO CONTEST

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

23. 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(7.2), 1(14), 1(15), 1(18), and 1(19).

24. 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 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 Statement of Uncontested Facts and Plea of No Contest voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

25. 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.

26. In light of the Uncontested Facts and the circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on October 28, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 21 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. While the Statement of Uncontested Facts and Plea of No Contest describes prior similar conduct by the Member, the Panel limited its findings to the allegations related to the 2018-2019 academic year, as specified in the Notice of Hearing.

8The Uncontested Facts demonstrate that the Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. The Member told students in his Grade [XXX] and [XXX] classes to “shut up” or used other similarly disrespectful language with students. Statements from students (Exhibit 2 at Exhibit F) and video recordings captured by students during the Member’s class (Exhibit 2 at Exhibit G) demonstrate that the Member used this type of language on more than one occasion, including when students were trying to engage with him on the topic of vaccines. On one occasion, during a student’s presentation of her work on vaccines, the Member “aggressively challenged her and embarrassed her in front of her peers” (Exhibit 2 at Exhibit B). Students have a reasonable expectation to be treated with respect when they express their opinions and views in a classroom setting. By dismissing students and cutting them off from speaking as well as using condescending and demeaning language, the Member verbally abused students.

9The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member expressed views in class that disparaged individuals with mental health conditions and asthma and discussed what he viewed as the harmful effects of vaccines. Among other things, the Member said that depression and anxiety are not “real” health issues, and that it is the fault of the individual for suffering from those conditions. The Panel agrees with College Counsel’s submissions and finds it reasonable that hearing such comments from a teacher would be upsetting to students. They are dismissive to students who may be facing mental health challenges or to students who know or support someone struggling with those types of health issues. Further, the Member’s comments reinforce a harmful social stigma about mental health. The Member also told students that vaccines have a 100% failure rate and that they cause autism. The Member’s discussions on this subject were one-sided, off-topic and inconsistent with the prescribed curriculum. By his remarks, the Member provoked fear in the classroom, which the Panel also finds would reasonably have a negative impact on students. The Panel therefore finds that the Member’s comments to students on the topics of mental health and vaccines were psychologically or emotionally abusive. The Panel also places weight on the fact that the Member did not contest that the personal views he expressed to students amount to psychological or emotional abuse of students.

10The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14), by breaching the standards articulated in the Ethical Standards for the Teaching Profession set out at section 32.02 of the College’s by-laws. The ethical standard of “Care” expects members to express their commitment to students’ well-being through positive influence, professional judgment and empathy. The Member did not uphold this standard by allowing his strongly held personal views to impact his class and by taking up instructional time intended for teaching the curriculum to share his views. When students tried to engage with the Member about his controversial views, he responded by telling students to “shut up”. One student remarked that “[the Member] taking a lot of our class time to push his opinion onto us rather than cover what we should be doing isn’t the best use of our time and is kind of inappropriate. He shouldn’t act like that especially as a [XXX] teacher” (Exhibit 2 at Exhibit F at page 30). This behaviour created an uncomfortable environment for students that provoked fear and demonstrated a lack of professional judgment and care for students’ well-being.

11The ethical standard of “Respect” expects that teachers honour human dignity and emotional wellness. The comments that the Member made about mental health fail to honour human dignity and demonstrate a lack of respect for students who may be experiencing mental health challenges. Similarly, dismissing the views of students who were trying to engage with the Member on the topic of vaccines and telling them to “shut-up” is demeaning and shows a lack of respect for their intellect.

12The ethical standard of “Trust” requires teachers to foster values of fairness, openness and honesty. The relationships between teachers, students and the public are based on trust. The Member broke that trust by repeatedly allowing his personal views to override his responsibility to teach the curriculum. Students expressed their concerns about not being adequately prepared for the next phase of their education due to the Member’s digressions.

13Finally, teachers are expected to model “Integrity”, which encompasses honesty, reliability and moral action. The Member had received multiple warnings from his School and Board that his pattern of behaviour was inappropriate. He was also previously disciplined by the College for similar misconduct. By engaging in similar behaviour in 2018-2019, despite multiple prior warnings and sanctions, the Member showed that he lacked integrity and could not be relied upon to teach the curriculum appropriately. The Panel therefore finds that the Member’s conduct fell below the prescribed Ethical Standards for the Teaching Profession.

14The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with subsection 264(1) of the Education Act, which sets out the duties of a teacher. Subsection 264(1)(c) requires teachers to demonstrate the highest regard for several virtues, and it is commonly understood to mean that teachers are to act as positive role models. The Member’s conduct demonstrated poor role modeling when addressing controversial topics in the classroom. The Member repeatedly expressed personal and one-sided views to students that were beyond the scope of the curriculum. The nature of his remarks as well as the inappropriate way he addressed students failed to uphold the dignity of students or model respect for individuals who hold different views. As an authority figure in a trusted position of authority, the Member expressed disrespectful and hurtful views about individuals facing mental health and other health challenges, which is also at odds with the Member’s professional duties.

15The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Teachers are expected to exercise good judgment and to model appropriate behaviour, including self-regulation and respect for others. The Member spent a significant amount of class time presenting his own personal views to students, in disregard of multiple previous warnings not to do so. The Member knew or ought to have known that was he was doing was inappropriate. He had received two disciplinary letters in 2015 and was disciplined by the College in 2017 for similar misconduct. The Member was instructed to present all sides of controversial topics in class, to demonstrate respect for students, and to not spend instructional time on his own personal agenda. Nevertheless, the Member’s inappropriate behaviour persisted during the 2018-2019 academic year. This conduct was unprofessional. In addition, he made inappropriate comments about mental health and other health conditions and used inappropriate language when addressing students. This conduct was disgraceful and dishonourable as the Member advanced highly insensitive opinions in class, which would reasonably have made his students feel uncomfortable, offended, or possibly even stigmatized if they or those they cared about suffered from mental health conditions. Members must ensure that schools are safe spaces. By repeatedly making demeaning and dismissive comments about sensitive issues and by spreading fear about vaccine safety, the Member did the opposite.

16Finally, the Member’s behaviour, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. When teachers abuse their privileged position to further a personal agenda with students instead of teaching the curriculum, they undermine the public’s trust and confidence in the teaching profession as a whole.

F. UNDERTAKING, AGREEMENT AND ACKNOWLEDGMENT

17On October 28, 2021, the Member entered into an Undertaking, Agreement and Acknowledgment (Exhibit 4) with the College in which he agreed to the following terms:

1. I hereby resign as a member of the College and surrender irrevocably my Certificate of Qualification and Registration effective on the date of the hearing of this matter.

2. I undertake that I will never seek reinstatement of my Certificate of Qualification and Registration.

3. I undertake that following my resignation, I will never teach again in any public or private school in Ontario or work in any position that requires membership in the College.

4. I acknowledge that I will not be entitled in the future to seek membership in the College after having resigned permanently from membership in the College and having irrevocably surrendered my Certificate of Qualification and Registration pursuant to this Undertaking, Agreement and Acknowledgement.

5. I acknowledge that my status on the Public Register of the College will be “Resigned-Cancelled” and the notation will read as follows:

“On October 28, 2021, the Member was found guilty of professional misconduct. Reprimand. Six month suspension. Publication in Professionally Speaking. On October 28, 2021, before the Discipline Committee at the College, the Member resigned his membership with the College and undertook to never teach again in any public or private school in Ontario or work in any position that requires membership in the College. The Member undertook never to seek reinstatement of his Certificate of Qualification and Registration.”

6. I acknowledge that the College is authorized to provide information regarding this Undertaking, Agreement and Acknowledgement in response to any inquiries it receives from any authority that regulates the practice of teaching in any other jurisdiction.

7. I acknowledge and understand that the decision and reasons of the Discipline Committee in this matter will be available on the College’s website.

8. I understand and agree that this Undertaking, Agreement and Acknowledgement is legally binding on me and that the College may take any legal action against me to enforce it that the College deems appropriate.

9. I fully understand the terms of this Undertaking, Agreement and Acknowledgement.

10. I acknowledge my understanding about the scope, purpose and effect of my execution of this Undertaking, Agreement and Acknowledgement and am executing same voluntarily, unequivocally, and with the advice of legal counsel.

G. PENALTY DECISION

18The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 28, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a written reprimand 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 date of the Decision and Order of the Discipline Committee relating to this matter.

H. REASONS FOR PENALTY DECISION

19The 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, in conjunction with the Member’s Undertaking, Agreement and Acknowledgment, 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. Sullivan, 2017 ONOCT 41, Ontario College of Teachers v. Lowrie, 2015 ONOCT 53, Ontario College of Teachers v. Gedies, 2021 ONOCT 79, Ontario College of Teachers v. Bird, 2019 ONOCT 5, and Ontario College of Teachers v. Porter, 2021 ONOCT 86.

20The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is that the Member has a prior Board and College discipline history for similar misconduct. In 2017, a Discipline Committee made a finding of professional misconduct against the Member, yet he engaged in similar misconduct during the 2018-2019 academic year. In terms of mitigating factors, the Member entered into a resolution with the College saving student witnesses from having to testify as well as the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties, in conjunction with the Member’s Undertaking, Agreement and Acknowledgment, is reasonable.

21The Panel finds that the Member’s pattern of inappropriate conduct, despite prior warnings and discipline from the Board the College, warrants a reprimand. The Member’s conduct in the classroom was unacceptable. The Member is entitled to his own opinions, even if they are controversial or not widely held. However, those personal opinions negatively affected the Member’s teaching, his students, and the school environment. In addition to discussing his opinions about vaccines, the Member made inappropriate comments about mental health issues and used demeaning language with students to shut down opposing views, which is unacceptable. 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.

22Given the nature and severity of the Member’s conduct, 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 is justified. As the Member has resigned his Certificate of Qualification and Registration and will not be returning to teaching, the suspension will serve as 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 the date of the Panel’s Decision and Order.

23In view of the serious nature of the Member’s misconduct, the Panel finds it reasonable that the Member will no longer teach or seek to return to the teaching profession in Ontario. In accordance with the terms of his Undertaking, Agreement and Acknowledgment, the Member is no longer entitled to teach in publicly funded or private schools in Ontario. The Panel is satisfied that the terms of the Undertaking, Agreement and Acknowledgment will further serve the goal of public protection by ensuring that the Member poses no future risk to students.

24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.