DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v McCracken 2021 ONOCT 141

Date: 2021-11-25

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

David Hunter McCracken, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID HUNTER MCCRACKEN (REGISTRATION #242878)

PANEL: Alain Martel, OCT, Chair

Jacqueline Boulianne, OCT

Lois Figg

HEARD: November 23, 2021

Danielle Miller, for the Ontario College of Teachers

Naomi Greckol-Herlich, for David Hunter McCracken

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 23, 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 February 27, 2019 (Exhibit 1) and November 25, 2019 (Exhibit 2) were served on the Member, specifying the allegations and requesting his presence on a date to be determined for the hearing. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing, in accordance with subsection 9.1(1)(a) of the Statutory Powers Procedure Act.

3David Hunter McCracken (the “Member”) did not attend the hearing but had legal representation. The Member 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

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 February 27, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that David Hunter McCracken 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);

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

(d) 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);

(e) 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);

(f) 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);

(g) 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 November 25, 2019 (Exhibit 2) are as follows:

IT IS ALLEGED that David Hunter McCracken 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);²

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

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);³

(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. AGREED STATEMENT OF FACTS

7College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. David Hunter McCracken is a member of the Ontario College of Teachers. Attached 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] (the “School”) in Toronto, Ontario.

3. During the 2017-2018 and 2018-2019 academic years, Persons 1, 2, and 3 were female teachers at the School. During the 2017-2018 academic year, Student 1 was a [XXX]-year old male student and Student 2 was a [XXX]-year old female student. During the 2018-2019 academic year, Student 3 and Student 4 were [XXX]-year old male students and Student 5 was a [XXX] year-old female student at the School.

2017-2018 Academic Year

Fall 2017

4. Between October 2017 and January 2018, the Member had a conversation with his curriculum leader about a number of interactions he had had with his colleagues, Persons 1 and 2. During the course of this discussion, the Member referred to Person 1 as the “Russian Tank” and Person 2 as the “Persian Princess”.

January 2018

5. In or around early January 2018, the Member was performing a demonstration for students in his class when Student 1 entered the classroom and began speaking with his classmates and looking at his phone. The Member asked Student 1 to get off the phone, but Student 1 did not listen. The Member responded by forming the shape of a gun with his fingers and pointing his hand at Student 1. When other students in the class objected to the Member’s hand gesture, the Member immediately apologized for his actions. As the Member struggled to manage the classroom, he referred to the students as “idiots” and “morons”.

6. On January 24, 2018, the Member was distributing grades from a test when students from Person 3’s classroom knocked on the Member’s door as a prank, as had happened on other occasions. On this occasion, the Member opened the door to see who was there and observed Person 3’s students running back to their classroom. The Member responded by entering Person 3’s class, while class was still in progress, and yelled at her students, within inches of their faces, in an intimidating manner.

7. The Vice Principal was alerted to the situation by one of the School’s safety monitors and went to check on the students in Person 3’s class. When he arrived, he could hear the Member yelling through the walls and the classroom door. Upon entering the classroom, the Vice Principal observed the Member yelling at students, “Why do you knock on my door and disturb the class?”, while slapping the desk very hard. The Vice Principal observed that Person 3 and her students were shocked by the Member’s behaviour. When the Member noticed the Vice Principal, he stopped this behaviour. Person 3 found the incident to be terrifying, undermining of her authority, unprofessional, and intimidating. A student in Person 3’s class also described feeling terrified during the encounter.

8. On January 29, 2018, students in the Member’s class were scheduled to write a test. Student 2, who was taking the test in the resource room, returned to the classroom early. The Member became involved in an argument with Student 2 and instructed her to leave the classroom and attend the Vice Principal’s office. After Student 2 had left the classroom, the Member moved Student 2’s possessions into the hallway, told the remaining students that they were better off without her, and locked the classroom door to prevent Student 2 from returning.

Board Discipline

9. The Member was issued a discipline letter, dated February 5, 2018 suspending him for ten days without pay, which was subsequently grieved and reduced to six days. The Member was required to review the College’s Ethical Standards for the Teaching Profession and the Board’s Equity Foundation Statement and Workplace Harassment Prevention Policy. Attached as Exhibit “B” is a copy of the Principal’s letter to the Member.

2018-2019 Academic Year

10. During the first semester of the 2018-2019 academic year, the Member acted inappropriately while trying to manage the challenging behaviour of students in his class.

11. The Member yelled at his students.

12. The Member said “shut up” to his students.

13. The Member looked at Student 3 and remarked, “Some of you are on the autism spectrum”.

14. The Member repeatedly referred to Student 4 by his last name, despite having been asked by Student 4 not to do so.

15. The Member mispronounced Student 5’s first name, after having been corrected by her as to the correct pronunciation, and then said, “It’s the same thing”.

16. The Member slammed a clipboard in class and broke a meter stick against a desk.

17. The Member shook a can of pennies at a group of students while stating words to the effect of, “This is what they use to train animals”. He also blew a whistle loudly in class and physically positioned himself uncomfortably close to the faces of students and stared at them in a challenging manner.

18. The Member’s behaviour caused some of the students in his class to feel demeaned, uncomfortable, unsafe, stressed, and anxious.

19. The Member also engaged in inappropriate behaviour toward his colleagues. He repeatedly failed to respond to emails from the School administration, particularly the Vice Principals.

20. On one occasion, the Member pushed past Person 2’s cart of teaching supplies, which was in his way, knocking the supplies off the cart. The Member was aware that he had caused items to fall, but left Person 2 to pick up the items herself.

Board Discipline

21. The Member was issued a discipline letter, dated November 5, 2018, suspending him for five days without pay, which was subsequently grieved and reduced to three days. The letter required that he, once again, review the material referenced in his discipline letter dated February 5, 2018. Attached as Exhibit “C” is a copy of the Principal’s letter to the Member.

Prior History

22. The Member had received a number of corrective directions and discipline from the Board prior to the conduct described above. Concerns regarding the Member’s behaviour were raised and addressed with the Member in 2002, 2004, 2006, 2008, and 2017. Attached as Exhibits “D”, “E”, “F”, and “G” are various letters, including letters of reprimand, that the Member received from Board employees and school administrators between May 2002 and November 2008. Attached as Exhibit “H” is a copy of a note summarizing a meeting in September 2017 at which the Member was reminded to have only respectful exchanges with students and staff.

GUILTY PLEA

23. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

24. The Member hereby acknowledges that the Admitted Facts set out in paragraphs 1 through 21 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(7), 1(7.2), 1(14), 1(15), 1(18), and 1(19).

25. 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 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 Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

26. 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

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraph (a) of the Notice of Hearing dated February 27, 2019 (Exhibit 1) and paragraphs (a) and (c) of the Notice of Hearing dated November 25, 2019 (Exhibit 2),namely that the Member contravened subsections 1(5) and 1(7.1) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. With respect to subsection 1(7.1), College Counsel submitted that there was insufficient evidence to support a finding of physical abuse. The Panel granted the requests.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on November 23, 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

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 22 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 at paragraphs 1 to 21 constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that, on multiple occasions, the Member engaged in disrespectful and aggressive behaviour at school.

11The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97, by making disrespectful and demeaning comments to students and by yelling at them. For instance, in an attempt to manage his classroom, the Member referred to his students as “idiots” and “morons”. Moreover, the Member looked at Student 3 and remarked, “Some of you are on the autism spectrum”; he shook a can of pennies at students and insinuated that they were animals to be trained; and he mispronounced Student 5’s first name and made light of the mispronunciation, among other things. In addition, the Member yelled at students in an intimidating manner. It is inappropriate for teachers to intimidate, demean and yell at students, even in the face of challenging student behaviour. Teachers must always be respectful and composed in their dealings with students, which the Member failed to do in this case. As such, the Member’s conduct amounts to verbal abuse.

12The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Agreed Facts demonstrate that the Member’s disrespectful and aggressive behaviour towards students caused them emotional distress. In addition to the Member’s verbally abusive conduct described above, the Member also: pointed at Student 1 by forming the shape of a gun with his fingers; slammed a clipboard in class and broke a meter stick against a desk; and blew a whistle loudly in class and physically positioned himself uncomfortably close to the faces of students and stared at them in a challenging manner. The Member’s behaviour caused some of the students to feel shocked, demeaned, uncomfortable, unsafe, stressed, anxious and terrified. Given the power imbalance that exists between teachers and students, it was emotionally abusive for the Member to repeatedly engage in such disrespectful and aggressive behaviour towards students. The Member’s conduct therefore amounts to psychological or emotional abuse of students. Teachers must manage their classrooms without intimidating students and making them feel unsafe or anxious at school.

13The Panel finds that the Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the standards of the teaching profession. In particular, the Member breached the ethical standards of “Care” and “Respect” and the standard of practice of “Leadership in Learning Communities”. The standard of “Care” requires members to demonstrate a commitment to students’ well-being and learning through positive influence, professional judgment, and empathy in practice. The standard of “Respect” requires members to honour human dignity, emotional wellness and cognitive development. The practice standard of “Leadership in Learning Communities” requires members to promote and participate in the creation of collaborative, safe and supportive learning communities. Not only was the Member demeaning and aggressive towards students, but he also undermined his colleague’s authority by entering her class while it was in progress and yelled at her students. Moreover, the Member referred to two of his colleagues as “Russian Tank” and “Persian Princess”. By engaging in such conduct, the Member disregarded students’ well-being and was disrespectful towards his students and colleagues. The Member created a fearful atmosphere at school, which was incompatible with the expectation that teachers will promote a collaborative, safe and supportive learning environment. As such, the Member’s conduct falls below the standards of the teaching profession.

14The Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c.E.2, which sets out the duties of a teacher. Section 264(1)(b) provides that it is the duty of a teacher to encourage students in the pursuit of learning. Section 264(1)(c) is commonly understood to mean that teachers must act as positive role models. Section 264(1)(d) requires teachers to “assist in developing co-operation and co-ordination of effort among members of the staff of the school.” By repeatedly behaving in a derogatory and intimidating manner towards students, the Member discouraged students from learning. Furthermore, by displaying such conduct in front of students, the Member failed to behave as a positive role model in his school community. Moreover, the Member demonstrated a lack of cooperation with school staff, including by repeatedly failing to respond to emails from school administration and by knocking supplies off a colleague’s cart of teaching supplies and leaving her to pick up the items herself, instead of assisting her. In these ways, the Member failed to fulfil the duties of a teacher.

15The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable, and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is unacceptable for teachers, who are expected to be upstanding members of the community, to engage in threatening and demeaning behaviour in a school environment. The Member’s conduct was not a momentary lapse of judgment as it occurred on multiple occasions over two academic years and involved several students as well as colleagues. The Member also demonstrated poor professional judgment by repeatedly failing to respond to emails from the School administration. The Member’s conduct demonstrates significant moral and professional failings. Teachers must behave honourably, respectfully, and professionally towards students (even when faced with challenging student behaviour), and colleagues. The Member did the opposite and as such his behaviour can be characterized as disgraceful, dishonourable and unprofessional.

16The Panel finds that the Member’s pattern of inappropriate conduct as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members who engage in aggressive and disrespectful behaviour towards students and colleagues undermine the reputation of the teaching profession and violate the trust that parents, students, and the public place in teachers.

F. PENALTY DECISION

17The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on November 23, 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 four 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 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 anger management, professional ethics, and cultural sensitivity, 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 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 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

18The 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. Labbé, 2018 ONOCT 19 (Decision and Reasons on finding) and 2018 ONOCT 39 (Decision and Reasons on penalty), Ontario College of Teachers v. Antonenko, 2019 ONOCT 79, Ontario College of Teachers v. Hall, 2018 ONOCT 55 (Decision and Reasons on finding) and 2019 ONOCT 19 (Decision and Reasons on penalty), and Ontario College of Teachers v. Coulombe, 2019 ONOCT 88.

19The Panel considered the Member’s circumstances in comparison to the cases provided. There are many aggravating factors in this case. First, the Member engaged in a wide range inappropriate behaviour despite prior warnings and disciplinary measures imposed by his employer. Second, the Member’s conduct involved several students and three colleagues. Finally, the Member’s misconduct spanned over two academic years. In terms of mitigating factors, the Member has not been the subject of College discipline in the past, the Member participated fully in this disciplinary process, thereby saving the time and expense of a contested hearing, and the Member has admitted his misconduct and expressed remorse. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

20The Panel finds that the Member’s repeated disrespectful and aggressive behaviour, despite prior warnings from the Board, warrants a reprimand. Teachers are required to foster a collaborative, safe and supportive environment for students and colleagues. They must also remain professional and composed when managing 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.

21Given the nature and severity of the Member’s misconduct, the Panel finds that a four-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 December 8, 2021, which is 15 days after the Panel’s Decision and Order.

22The Panel finds that the course of instruction regarding anger management, professional ethics, and cultural sensitivity 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 students and colleagues.

23The 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 withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.