Citation: Ontario College of Teachers v Dimarco 2021 ONOCT 142

Date: 2021-12-08

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

Joseph Biagio DiMarco, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOSEPH BIAGIO DIMARCO (REGISTRATION #508187)

PANEL: Rebecca Forte, OCT, Chair

Andrew Glenny

Linda Staudt, OCT

HEARD: November 15, 2021

Danielle Miller, for the Ontario College of Teachers

No one appearing for Joseph Biagio DiMarco

Julie Maciura, 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 15, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2The Panel delayed the start of the hearing by 10 minutes to allow Joseph Biagio DiMarco (the “Member”) the opportunity to join the proceedings. The Member did not attend the hearing and did not have 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 March 30, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Joseph Biagio DiMarco 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);

(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, 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).

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:

Joseph Biagio DiMarco 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 Northeastern Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

2016/2017 Academic Year: Conduct in relation to Student 1

During the 2016/2017 academic year, Student 1 was a Grade [XXX] male student in the Member’s class at the School.
In or about April 2017, the Member told Student 1 that he “got on his nerves” and that he was a “joke” to him.
The Member told Student 1 that he and the other teachers discussed him in the staff room and agreed that they have to repeat everything for him.
During the same time period, the Member also said to Student 1, “We have reached a point in our relationship where simply looking at your face is starting to make me feel hate.” This caused the other students in the class to laugh.
Student 1 felt embarrassed when the Member made negative comments about him in front of his peers.

2018/2019 Academic Year:

During the 2018/2019 academic year, the Member taught a Grade [XXX] class at the School.

The Holocaust:

During a unit in which the Member taught the students about the Holocaust, he encouraged his class to question the accuracy and use made of established Holocaust information, in particular, whether the figure of six million Jewish deaths was an exaggeration or fabrication.
The Member provided students with learning material about the Holocaust from disreputable and unapproved sources which contradicted the facts contained in the Board-approved course textbook. These sources included showing his students videos of talk shows, such as the Phil Donohue Show and the Montel Williams show, suggesting that the Holocaust was factually untrue.
When students tried to challenge or question the Member’s assertions about the figure of 6 million deaths not being accurate, the Member was dismissive, reminding the students how much research he had done and warning them not to believe everything they read. Students were disturbed by the information being provided to them and at least one student reported to her mother that the Member was teaching them Holocaust denial.
The Member shared his view with students that the Israeli government is a malicious force, and that it frames itself as the victim, by exaggerating the tragedy of the Holocaust, in order to make the world more receptive to its agenda. To provide support for his beliefs, the Member prepared for his students a self-titled “Zionism slideshow”, used over multiple days of classes. The presentation focused on topics and political issues which did not represent the Board-approved curriculum for the Grade [XXX] course and lacked instructional value to promote student learning. The slideshow included YouTube clips, some of which were subsequently censored on the basis that the content violated the company’s policy on hate speech.
Given the amount of time the Member dedicated to his own instructional content, the class had fallen far behind the required units of material to be covered in the course.
In March 2019, the School administration organized a school trip to [XXX] where students would be visiting World War II sites, including a concentration camp. In the weeks leading up to the planned trip, the Member openly disparaged the upcoming trip as “propaganda” by the “powers that be.” The Member advised his students that they were intentionally being taken to a Holocaust memorial site when they first arrived and would be fatigued from travelling, in order to prevent students from questioning the Holocaust narrative and to play on their sympathies.

9/11 Conspiracy Theory:

The Member also took a particular, personal interest in 9/11 conspiracy theories and spent a significant amount of class time sharing these theories with his students. He explained that he had done extensive research on the subject and offered to provide his students with resources in support of what he was teaching them.
The Member taught his students that the Israeli military orchestrated the 9/11 attacks, with assistance from elements within the U.S. government, and had used controlled detonations to collapse the World Trade towers. The Member remarked to one of his colleagues at the school that “…if some people actually understood who was pulling the strings, and the truth came out – antisemitism will return with a ferocity seldom seen throughout history.” Attached hereto and marked as Exhibit “B” is a copy of an email, dated March 31, 2019, sent by the Member to the chaplain at the School, Michael Buhler.¹
The Member was passionate in his desire to convince others of the “truth” behind 9/11 and spent a significant amount of time in his [XXX] class discussing this topic which had no relevance to the course curriculum and at the expense of teaching the appropriate, required subject matter.

Member’s music:

The Member led a rock band in which he wrote song lyrics and performed accompanying music videos. In addition to the music album being available on a public website, at students’ request, the Member played some of his music videos in class, and on January 4, 2019, posted links to his music on the Facebook page of the [XXX] Club.
The posted link, and the public website, take users to songs by the Member’s band which include titles such as “911 IS A LIE” and “The Counter-Narrative”, the lyrics for which, contain numerous violent and graphic methods for murdering the members of the 9/11 Commission. The lyrics also scoff at the notion that 6 million Jews died in the Holocaust. In the music videos, the Member is seen brandishing several semi-automatic weapons and drinking what appears to be alcohol. Attached hereto and marked as Exhibit “C” and Exhibit “D” respectively, are copies of the lyrics of the Member’s song “911 IS A LIE” and “The Counter-Narrative”.
The content of the Member’s song lyrics, with its focus on Zionists, is similar to what the Member presented in the aforementioned slideshow he used in class.

Board Discipline:

In March 2019, a parent of a student in the Member’s [XXX] class wrote to the School administration complaining that the Member was abusing his position of authority and trust to promote Holocaust denial and anti-Semitism.
The Board began an investigation, the outcome of which led to the Member’s employment with the Board being terminated effective May 30, 2019. Attached hereto and marked as Exhibits “E” and “F” respectively is a copy of the Board’s correspondence to the Member dated May 1, 2019 recommending his termination, and termination letter dated May 30, 2019.
The Board concluded that the Member’s “wilful actions have lead [sic] to the promotion of Holocaust denial, racism, hate and conspiracy theories” all of which created a “poisonous learning environment for the students under his care.” In a presentation to the Board recommending the Member’s termination, the Superintendent of Education offered her opinion as to the following ways in which the Member failed to maintain the standards of the profession:

(a) The Member’s attempt to undermine the nature of the [XXX] trip by sharing his own beliefs and theories with student participants represented a form of insubordination;

(b) Despite reminders about expectations, the Member did not conduct himself in accordance with the Ethical Standards and the Standards of Practice for the Profession. He failed to show a commitment to student learning through positive influence and professional judgment; failed to apply professional knowledge and experience to promote student learning; and failed to use appropriate pedagogy, assessment and evaluation and resources to plan for and respond to the needs of the students in his class;

(c) The Member demonstrated a lack of professional judgment through his off-duty conduct as evidenced by the content on his personal website and his decision to share it on a social media site accessed by students;

(d) The Member’s insubordination, disobedience, and wilful neglect of duty amounted to a fundamental breach of his duties as a teacher.

Attached hereto and marked as Exhibit “G” is a copy of the speaking notes of the Superintendent of Education, Jennifer Dunkley, to the Board at a meeting to recommend the termination of the Member’s employment.

Expert Report:

The College retained Bernie Farber, an expert in anti-Semitism, extremism and hate motivated crimes, to provide an opinion as to whether the Member’s teaching was anti-Semitic or risked arousing anti-Semitic sentiment among his students. Attached hereto and marked as Exhibit “H” is a copy of Mr. Farber’s expert report dated September 30, 2021.
The expert concluded that the Member’s conspiratorial mindset and the content of his presentations were anti-Semitic, and risked arousing anti-Semitic beliefs in his students. Mr. Farber points to the Member’s stated belief that when people know the “truth” about who was behind 9/11 (in the Member’s view, the state of Israel), it will cause “ferocious” antisemitism; yet, he attempts to reveal this “truth” to his students, even offering to support his theories with research he has done. In the expert’s opinion, this statement establishes that the Member knew, or ought to have known, that his teaching risked arousing anti-Semitic sentiment among his students.
Mr. Farber further opined that, although the Member tries to characterize his views as anti-Israel or anti-Zionist as opposed to anti-Semitic, when one looks at the totality of the Member’s messages, it becomes apparent that he is using the term “Zionist” as a “convenient effigy when it is inexpedient to talk about Jews.” It is also unclear that the Member’s students had the capacity, or sufficient knowledge base, to understand the distinction between anti-Zionism and anti-Semitism. This is evidenced by a student’s recollection that the Member said 9/11 was “done by the Jewish people”.

PLEA OF NO CONTEST

By this document, the Member agrees that the Discipline Committee can accept as correct, for the purposes of this proceeding only, the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.2), 1(14), 1(15), 1(18), and 1(19).
By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the 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 this Agreement voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E.23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on November 15, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 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 26 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 verbally and emotionally abused Student 1 by making negative comments about him in front of his peers, and that he promoted conspiracy theories and anti-Semitic sentiments in place of the required curriculum in his [XXX] class.

8The Member failed to maintain the standards of the profession by his statements and actions in his [XXX] class, contrary to Ontario Regulation 437/97, subsection 1(5). College Counsel submitted that in accordance with the Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508, the Member’s conduct was so notorious and obviously contrary to the professional standards that the Panel did not need to hear expert evidence on the standards to make their finding. College Counsel also provided, in the alternative, that the presentation by the Board’s Superintendent in Exhibit G of Exhibit 2, clearly outlined how the Member failed to adhere to the standards of the profession.

9Having considered all of the evidence before it and the College’s submissions, the Panel finds that the Member did not abide by the standards of practice or the ethical standards for the teaching profession. Both the College’s expert² and the Board found the Member promoted anti-Semitic sentiments in class and via social media. College Counsel took the Panel through the standards of practice and the ethical standards and explained how the College believed the Member fell below those standards. The Member does not contest the fact that his behaviour contravened the standards of the profession and the Panel is prepared to make that finding. The Member’s song lyrics and music videos, which he played for students in class and made available to the school community via social media, contained anti-Semitic lyrics, violent imagery, and promoted conspiracy theories (see Exhibit 2 at Exhibits C and D). Rather than teaching the Board-approved curriculum in his [XXX] class, the Member spent significant class time on controversial topics, including Holocaust denial and 9/11 conspiracies, and he used disreputable and unapproved sources to teach his prejudicial and hateful views. The Member was also dismissive of students who tried to challenge or question his controversial views.

10The Member breached the ethical standards of “Care”, “Trust” and “Respect” by failing to teach acceptance, compassion, openness, fair-mindedness, freedom, and democracy, which are central tenets of these ethical standards. His promotion of anti-Semitic, hateful, and conspiratorial views to impressionable students was completely at odds with these standards. The Member also breached the standards of practice for the teaching profession, including “Commitment to Students and Student Learning”, “Leadership in Learning Communities”, and “Professional Practice”. He created a negative environment that did not facilitate student learning and that promoted hateful beliefs that went contrary to the development of his students as contributing citizens in an inclusive and diverse society. He did not use appropriate pedagogy and resources in his [XXX] class, including by presenting to his students YouTube clips (some of which were censored for violating YouTube’s policy on hate speech), videos of talk shows denying the Holocaust, and his own rock band’s violent and hateful song lyrics and music videos. Students in the Member’s class were disturbed by the information he provided them. The Member’s conduct showed a complete lack of professional judgment and a flagrant breach of the standards of the teaching profession. The classroom cannot be used a platform for teachers to spread their personal prejudices and hateful viewpoints.

11The Member abused a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7). Teachers are always required to maintain professionalism, decorum, and respect in their relationship with students. The Member made several hurtful and antagonistic comments to Student 1, including that:

Student 1 “got on his nerves”;
Student 1 was a “joke” to the Member;
the Member discussed Student 1 in the staff room with other teachers who agreed that they had to repeat everything for the student; and
“simply looking at your [Student 1’s] face is making me feel hate”.

It is unacceptable for teachers to make denigrating, belittling, and insulting comments towards students, especially in front of their peers, and the Panel finds that these comments constitute verbal abuse of Student 1.

12The Member abused a student or students psychologically and emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. On at least one occasion when the Member made insensitive comments to Student 1 in front of the class, other students laughed at Student 1. The Member singled out Student 1 and made him feel embarrassed by making negative comments about the student in front of his peers. The Member does not contest, and the Panel finds that the Member’s behaviour towards Student 1 was psychologically and emotionally abusive. Teachers are responsible for the emotional safety of students under their care. It is not acceptable for a teacher to publicly embarrass a student and to repeatedly demean them.

13The Member’s actions and statements toward Student 1, in particular, contravened subsection 1(14) of Ontario Regulation 437/97, by failing to adhere to the Ethical Standards for the Teaching Profession set out in section 32.02 of the by-laws. The Member did not show compassion or empathy when he repeatedly made negative and demeaning comments to Student 1 and did not honour Student 1’s human dignity, emotional wellness and cognitive development. By mocking Student 1, he therefore failed to adhere to the ethical standards of “Care” and “Respect”.

14The Member failed to comply with the duties required of teachers that are outlined in subsection 264(1) of the Education Act, and therefore contravened subsection 1(15) of Ontario Regulation 437/97. Subsection 264(1)(a) requires teachers teach diligently and faithfully their assigned classes and subjects. Subsection 264(1)(b) requires teachers to encourage students in the pursuit of learning. Subsection 264(1)(c) requires teachers to model moral virtues. Subsection 264(1)(d) of the Education Act requires teachers to assist in developing co-operation and co-ordination of effort among the members of the staff of the school. The Member failed to fulfill all these duties. The Member’s negative comments about and toward Student 1 did not set a good example for the students in his class. Similarly, the music videos in which the Member brandished semi-automatic weapons, appeared to drink alcohol, and espoused conspiratorial and anti-Semitic sentiments did not set a good example for the students in the Member’s [XXX] class. The Panel finds that it was inappropriate for the Member to have made and published such videos in the first place considering his unique position of authority and of influence in the community.³ The Member certainly should not have linked them to the Facebook page of the School’s [XXX] club and should not have showed them in his class. Rather than modelling the highest regard for virtues like truth and justice, and encouraging students in the pursuit of learning and an open exchange of ideas,⁴ the Member modelled intolerance and stifled student learning by: disregarding the curriculum; delivering his own instructional content based on prejudice; relying on disreputable and unauthorized resources to do so; and dismissing students when they challenged or questioned the controversial assertions he made in class. Finally, the Member made insubordinate comments, including that the school trip to [XXX] was “propaganda” by the “powers that be”, which demonstrated the Member’s lack of cooperation with school administration.

15The Member 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). The Member showed a complete lack of professional judgment and considerable moral failing by his repeated emotional abuse of Student 1 and by regularly departing from the curriculum in his [XXX] class to instead advance controversial and prejudiced views about the Holocaust and 9/11. There is no place for racism, discrimination, and intolerance in the classroom. Accordingly, the Panel finds that the Member’s conduct casts doubt on his moral and professional judgment and is rightfully characterized as disgraceful, dishonourable, and unprofessional.

16The Member’s conduct was unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Teachers are entrusted to, among other things: ensure students’ well being and safety, including psychological and emotional safety; encourage students in their learning and development; teach the curriculum; and model respect, open-mindedness, and self-control. The Member’s actions and statements toward Student 1 and abandonment of the required curriculum to teach his own views about the Holocaust and 9/11 from unapproved and disreputable sources were abuses of his position of trust and authority over his students. The Member took advantage of the classroom setting as a forum to tout his own beliefs. The Member’s misconduct discredits the reputation of the teaching profession.

F. PENALTY Decision

17The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 15, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member;
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”).

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 decision of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Frederick (Fromm), 2006 ONOCT 17 (“Fromm”).

19The 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 factors in the Member’s case are the repeated and intentional nature of the Member’s conduct toward Student 1 and in his [XXX] class, even after a prior Board warning to adhere to the standards of the profession and to be a positive influence on students (see Exhibit 2 at Exhibit G, page 56). After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

20The Panel finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member’s repeated, verbally and emotionally abusive conduct toward Student 1 was antithetical to teachers’ duties to uphold the safety and well being of students in their care. Further, the Member largely disregarded his responsibilities and duties to the students in his [XXX] class and abused his position of trust and authority over them when he ignored the required curriculum, imposed his own topics and prejudicial views on them, and dismissed their challenges or questions. The Member’s misconduct had a negative impact on his students. His actions have also jeopardized the public’s trust in the teaching profession to uphold and teach the fundamental values of tolerance and respect. The Member’s anti-Semitic and hateful ideology have no place in the school community. The Panel agrees with the Committee’s reasoning in Fromm, that:

A penalty other than revocation would send a message to other educators and to the public at large that the College is unwilling or unable to ensure that its members will not work to implement legislated policies based on shared public values. It sends a message that there is room in the Ontario education system for someone who is prepared to put his own political activities ahead of the interests of students, colleagues, and the education system itself. As a result, an order to revoke the Member’s certificate is necessary and appropriate.

Accordingly, the Member is no longer entitled to be a member of the teaching profession in Ontario.

21The Panel finds that the Member’s pattern of abhorrent conduct also warrants a reprimand. Members are expected to always abide by the ethical and practice standards of the profession, and to diligently perform all of their professional responsibilities. Teachers cannot use the classroom as a pulpit to promote own discriminatory opinions as facts. The Member repeatedly failed to do so and did a disservice to students in his class and the school community in general. He abused his position of trust and authority over his students. The reprimand will allow the Panel to directly address its overwhelming concerns with the Member’s intolerant behaviour 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.

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

Date: December 8, 2021

Rebecca Forte, OCT

Chair, Discipline Panel