DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Shapiro 2021 ONOCT 136

Date: 2021-11-10

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

Ari Neale Shapiro, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ARI NEALE SHAPIRO (REGISTRATION #465540)

PANEL: Anne Resnick, Chair

Alain Martel, OCT

Kimberley Westfall-Connor

HEARD: November 8, 2021

Ava Arbuck, for the Ontario College of Teachers

Patricia D’Heureux, for Ari Neale Shapiro

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 November 8, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Two Notices of Hearing dated November 29, 2019 (Exhibit 1) and June 30, 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 November 8, 2021. With the consent of the parties, pursuant to subsection 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.

3Ari Neale Shapiro (the “Member”) attended the hearing and 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

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 November 29, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Ari Neale Shapiro 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) 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);

(d) 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);

(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);²

(f) 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 June 30, 2020 (Exhibit 2) are as follows:

IT IS ALLEGED that Ari Neale Shapiro is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(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);³

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

C. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

1. Ari Neale Shapiro 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”).

3. During the 2017-2018 academic year, the Member was a [XXX] teacher at the [XXX] School [XXX] in Toronto, Ontario.

4. During the 2018-2019 academic year, the Member was a grade [XXX] and [XXX] teacher at the [XXX] in Toronto, Ontario.

Inappropriate Physical Contact at [XXX]:

5. During the 2017-2018 academic year, Student 1 was a male student in the Member’s class.

6. On February 1, 2018, Student 1 was continuing to stand and disrupt, after the class had been asked by the [XXX] teacher to sit on the carpet. The Member told Student 1 multiple times to sit with the rest of the class in a circle on the floor. Student 1 continued to laugh and did not sit down. The Member approached Student 1, held onto his shoulders or upper arms, and with his own leg, swept Student 1’s legs out from under him so that Student 1 landed in a seating position on the carpet.

7. On April 30, 2018 the Member was disciplined by the Board as a result of his inappropriate conduct toward Student 1. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated April 30, 2018.

Inappropriate Physical Contact at [XXX]:

8. During the 2018-2019 academic year, Student 2 was a Grade [XXX] student at the [XXX].

9. On November 1, 2018, Student 2 was fighting with another student in his Grade [XXX] classroom. Student 2 left the classroom in an escalated state and was visibly agitated. The Member was in the hallway and saw Student 2. The Member asked Student 2 what had happened and told Student 2 to calm down. Student 2 ignored the Member and walked toward the locker of the student he had been fighting with in his class. Student 2 began to take items out of the other student’s locker, and continued to do so after the Member told him to stop. There was a history of Student 2 physically fighting with other students at the school.

10. The Member instructed Student 2 to go to the office, but Student 2 did not comply and moved to continue to take items out of the other student’s locker. The Member then held Student 2’s wrists to stop him from continuing to empty the other student’s locker. The Member continued to hold Student 2’s wrists and walked with Student 2 to the caretaker’s office, which was immediately across the hall, and asked the caretaker to call the office for assistance, which he did.

11. Student 2 asked the Member to let go of him, but Student 2 remained in an escalated state and so the Member continued to hold him by the wrists for safety reasons. Student 2 then kicked the Member in the shin, so the Member moved behind Student 2 and folded Student 2’s arms across the Student’s chest, while holding Student 2’s wrists. Student 2 then slid or slipped down to the ground and the Member stood over him, still holding on to the Student’s wrists. Student 2 kicked his legs toward the Member, and kicked off his shoes, trying to hit the Member with them. Throughout, the Member repeatedly told Student 2 that he was holding him for safety reasons.

12. Another teacher then entered the caretaker’s office. The Member released Student 2 to this teacher, who then took him to the principal’s office.

13. The incident described at paragraphs 9-12 above was investigated by the Toronto Police Service, who concluded that in the absence of any further information there were no grounds for criminal charges, as it appeared that the Member was doing the best he could at controlling Student 2 for safety reasons. This incident was also investigated by [XXX] Family and Child Services and they concluded that child protection concerns had not been verified.

14. On March 8, 2019 the Member was disciplined by the Board as a result of his inappropriate conduct toward Student 2. Attached hereto and marked as Exhibit “C” is a copy of the Board’s letter to the Member dated March 8, 2019.

Prior Discipline History with the Board and Admonishment from Investigation Committee:

15. On October 24, 2017, the Member received a letter from the Board following an incident of inappropriate physical contact with a student at [XXX] which had occurred on October 2, 2017. The Member was required to attend a classroom management workshop and review Board policies.

16. On April 5, 2018, the Member was advised that the Registrar had initiated a complaint against him in relation to the incident referred to in paragraph 15. On July 9, 2019, the Member was admonished by the Investigation Committee. Attached hereto and marked as Exhibit “D” is a copy of the Member’s Admonishment dated July 9, 2019.

PLEA OF NO CONTEST

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

18. 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), 1(14), 1(15), 1(18 – unprofessional only), and 1(19).

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 Discipline 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 him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(g) 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.

20. 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.

21. 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

8Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing dated November 29, 2019, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. With respect to the allegations in both Notices of Hearing relating to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). College Counsel stated that the Panel’s permission to withdraw the 1(5) allegation was being sought as it was duplicative of the allegation that the Member contravened subsection 1(14) of Ontario Regulation 437/97. With respect to the 1(18) allegation, College Counsel stated that the evidence supported a finding that the Member’s conduct was unprofessional but did not amount to being disgraceful or dishonourable. The Panel granted these requests.

9Having 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 8, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(14) 1(15), 1(18) [unprofessional only], and 1(19).

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 16 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 inappropriate physical contact with Student 1 and Student 2.

11The Member physically abused a student or students contrary to subsection 1(7.1) of Ontario Regulation 437/97. The Member held onto Student 1’s shoulders or upper arms, and swept Student 1’s legs out from under him with his (the Member’s) own leg, to get Student 1 to sit on the carpet with his peers. This physical intervention was unwarranted. The Member should not have used physical force to elicit compliance from Student 1, who was only in [XXX] at the time. Members are required to prioritize the safety and physical well-being of their students. The Member’s conduct did not do so and constitutes physical abuse of Student 1. The Panel also finds that the Member’s conduct in relation to Student 2 constituted physical abuse. As set out above, following Student 2’s altercation with another student, the Member restrained Student 2 by holding his wrists until the student could be escorted to the office. In coming to this finding of physical abuse, the Panel places great weight on the fact that the Member did not contest that his behaviour amounted to physical abuse.

12The Member’s actions were contrary to subsection 1(14) of Ontario Regulation 437/97. The Member’s conduct toward Student 1 and Student 2 were contrary to the ethical standards of “Care” and “Respect” set out at section 32.02 of the by-laws. In using inappropriate physical contact to elicit compliance from Student 1 and restrain Student 2, the Member did not show empathy for or sensitivity towards them and did not honour their dignity, emotional wellness and cognitive development. Further, the Member did not apply his knowledge, learning and experience (including prior Board discipline) as required by the practice standards “Professional Knowledge”, “Professional Practice”, and “Ongoing Professional Learning” which are set out at section 32.01 of the by-laws. He ought to have known not to use inappropriate physical intervention to manage challenging student behaviour, especially given his prior Board discipline for similar conduct.

13The Member failed to comply with the duties of a teacher set out in section 264(1) of the Education Act, contrary to subsection 1(15) of Ontario 437/97. Section 264(1)(b) requires teachers to encourage students in the pursuit of learning. Section 264(1)(c) requires teachers to set good examples for their students by modelling moral values such as humanity, benevolence, and temperance. The Member’s reliance on inappropriate physical contact to restrain or control Student 1 and Student 2 was not proper behaviour management and set a poor example for them, as well as for the other students in Student 1’s class who witnessed the incident against Student 1. Such misconduct does not foster the safe and nurturing environment necessary to encourage students in the pursuit of learning.

14The Member’s actions were unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to behave professionally with students, even in the face of challenging behaviour. The Member showed poor judgment and a disregard for his professional obligations when he relied on physical interventions with Student 1 and Student 2, instead of using more appropriate behaviour management methods.

15The Member’s actions were also unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members are entrusted with the safety and well being of students and are responsible for teaching and modelling self-control, constructive ways of dealing with difficult situations, and healthy ways of interacting with others. The public’s confidence in the teaching profession is eroded when members abuse their position of authority and use inappropriate physical contact against students to manage or control their behaviour.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on November 8, 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 is to 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 1 (one) month commencing on the 15^th 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. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1.

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 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 of instruction pre-approved by the Registrar regarding professional boundaries, 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. Speakman, 2013 ONOCT 84; Ontario College of Teachers v. Allen, 2019 ONOCT 82; and Ontario College of Teachers v. Page, 2017 ONOCT 95.

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, saving witnesses from having to testify, and saving the time and expense of a contested hearing. The aggravating factor in the Member’s case is that he had previously been disciplined by his Board for similar conduct but did not subsequently improve his professional practice. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s repeated inappropriate conduct, despite warnings from the Board, warrants a reprimand. Members must not use inappropriate physical contact to manage challenging student 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 will serve 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 impress upon him the seriousness of his misconduct. It will also 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 November 23, 2021, which is 15 days after the Panel’s Oral Decision and Order.

21The Panel finds that the course of instruction regarding professional boundaries will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will equip him with strategies and tools to help him make better decisions in future interactions with students. While the Panel regrets that the coursework may not necessarily be completed before the Member returns to the classroom, it accepts that the course will help the Member on a going forward basis and therefore still meets the College’s public protection mandate.

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 the request of College Counsel.
2. 2Allegation narrowed to acts that would reasonably be regarded as unprofessional only at the request of College Counsel.
3. 3Allegation narrowed to acts that would reasonably be regarded as unprofessional only at the request of College Counsel.