DISCIPLINE COMMITTEE
OF THE ONTARIO COLLEGE OF TEACHERS
DECISION ON FINDING AND REASONS FOR DECISION
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
Robert Olen George, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ROBERT OLEN GEORGE (REGISTRATION #538045)
PANEL: Hanno Weinberger, OCT, Chair
Claudette Rutherford, OCT
Myrna Tulandi
HEARD: June 8 and August 17, 2021
Eli Mogil and Nicholas Fitz, for the Ontario College of Teachers
Robert Olen George, self-represented
Rebecca Durcan, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on June 8 and August 17, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Robert Olen George (the “Member”) attended the hearing and was self-represented.
3At the outset of the hearing, Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (e), and (f) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(16), and 1(17) of Ontario Regulation 437/97, be withdrawn. College Counsel provided the following reasons for his request. First, the allegations under subsection 1(5) were better captured by subsection 1(14) in this case. Second, subsections 1(16) and 1(17) deal with criminal conduct, and do not apply in the Member’s case as the Member was found not guilty of assault following a criminal trial. Due to College Counsel’s stated reasons, the Panel granted these withdrawal requests.
4At the conclusion of the hearing, the Panel reserved its decision. For the reasons that follow, the Panel finds that the College has successfully proved on a balance of probabilities 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) and 1(19).
A. PUBLICATION ban
5The 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
6The allegations against the Member in the Notice of Hearing dated January 24, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Robert Olen George 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, 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 contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);2
(f) he contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);3
(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); and
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Robert Olen George is a member of the Ontario College of Teachers.
At all material times, the Member was employed by [XXX]School Board as a teacher, first at [XXX] School (the “First School”), in [XXX], Ontario, and then at [XXX] School (the “Second School”) in [XXX], Ontario.
During the 2014-2015 academic year, the Member taught [XXX] at the First School and was the teacher of a male grade [XXX] student (“Student 1”).
On or about October 7, 2014, the Member engaged in inappropriate physical contact with a student, including but not limited to:
(a) choking Student 1;
(b) touching Student 1’s throat with his arm;
(c) holding Student 1’s shoulder and/or throat with his arm;
(d) holding Student 1’s hand and/or shoulder.
During the 2016-2017 academic year, the Member taught [XXX] at the Second School and was the teacher of a male grade [XXX] student (“Student 2”).
On or about June 6, 2017, the Member kicked Student 2.
On or about June 6, 2017, the Member committed the offence of assault contrary to section 266 of the Criminal Code of Canada.
C. THE MEMBER’S PLEA
7The Member denied the allegations set out in the Notice of Hearing.
D. THE EVIDENCE
8The Panel heard from four witnesses in total – three on behalf of the College and the Member testified as part of his defence. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. What follows is a summary of the evidence that the Panel heard in this hearing.
(1) The College
9The College called three witnesses to prove the allegations set out in the Notice of Hearing. Collette Fafard is an administrator who investigated the alleged events of October 7, 2014 at the First School. She testified as to her investigation of these events and her interview with the Member at the time. [XXX] (“Student 2”) was a student in the Member’s class at the Second School and was the subject of the alleged events of June 6, 2017. Riley Keast is a mental health specialist who was working at the Second School in 2017. She testified as to her interactions with the Member after the alleged events of June 6, 2017.
(a) Colette Fafard
10Colette Fafard is a special education resource teacher in the [XXX] School Board (“the Board”). In the fall of 2014, Ms. Fafard worked as the Acting Vice Principal at the First School. In the fall of 2014, the Member was the [XXX] teacher at the First School. On the afternoon of October 7, 2014, Ms. Fafard was in the office when she heard a commotion and some yelling from the hallway. She left the office to investigate the situation when she heard [XXX] (“Student 1”), a grade [XXX] student, say “don’t choke me”. She continued walking towards the noise when she saw the Member and Student 1 in the hallway. They both appeared agitated and Ms. Fafard called Student 1 in to the office. As he was walking into the office Student 1 repeated “don’t choke me”. The Member returned to class and Ms. Fafard led Student 1 to the office. In the office, Student 1 told Ms. Fafard that during the Member’s [XXX] class, Student 1 became upset because he was not getting free time like the younger students. The Member told Student 1 to leave the room because he was being disruptive. Student 1 left the room, picked up his shoes (as he was not wearing them during class) and walked down the hallway. Student 1 reported that the Member then followed him, grabbed him, put an arm around his neck, and tried to choke him. Other than stating that he “put an arm around his neck”, Student 1 did not provide further details as to exactly what he meant when he said the Member tried to choke him or what exactly the Member did to choke Student 1. Ms. Fafard testified that Student 1 was not willing to talk more about the incident in the office or to provide any more details.
11After speaking with Student 1, Ms. Fafard spoke with the Member to get more information about the incident. Ms. Fafard testified as to the statement that the Member made to her during this conversation. The Member told Ms. Fafard that Student 1 was “pissed” because he did not get free time. The Member asked Student 1 repeatedly to stop using profanity and being disruptive. When Student 1 did not stop, the Member asked him to leave the room, at which time Student 1 began running around the classroom. Student 1 then ran out of the classroom, and the Member followed him out. When the Member saw Student 1 picking up his shoes, the Member thought that Student 1’s intention was to leave the school. The Member did not want Student 1 to leave the school so he caught up with Student 1 and tried put his arm around the student to guide him to the office. When the Member tried to put his arm around Student 1, the student ducked and the Member’s arm made contact with Student 1’s throat. This is when Student 1 started yelling “stop choking me”. Ms. Fafard asked the Member to provide her with a written statement explaining what happened.
12Later that day, Ms. Fafard received a written statement from the Member describing the incident (Exhibit 4). In this statement, the Member described that, upon entering the classroom, Student 1 began teasing Student 1’s [XXX], and the Member asked him to stop. In response, Student 1 began running around the classroom, and running around the desks trying to avoid the Member. The Member pushed some desks apart to cut Student 1 off and to direct Student 1 to the office. Student 1 then ran down the hall to grab his shoes. The Member caught up to Student 1 and put his arm around the student to direct him to the office. Student 1 ducked under his arm and said that the Member was choking him.
13Ms. Fafard documented and reported the incident. In response, the Member was suspended with pay pending a Board investigation into the incident. However, the Member did not return to teach at the First School after his suspension.
(b) Student 2
14Student 2 was a Grade [XXX] student in the Member’s [XXX] class in June of 2017. On June 6, 2017, the Student was acting up – being loud, bothering other students in the class, and throwing a plasticine ball slightly smaller than a baseball around the classroom – and the Member sent him out to the hallway as a response. Student 2 testified that, on his way out, the Member kicked him hard on his buttocks. Student 2 was in pain following the kick and said something to the effect of “ow” as a response. Student 2 testified that this occurred approximately 10-20 minutes before the end of class. Following the kick, Student 2 did not go to the office but sat in the hallway until the end of class.
(c) Riley Keast
15Ms. Keast is currently a school counselor in [XXX], Ontario. In June of 2017, she was working as the Mental Health Lead at the Board. In this role, she provided mental health support to administrators, staff, and students at the Board and worked on the Board’s mental health strategic plan. In her role, she visited the schools in the Board often, including the Second School. Additionally, her permanent office was in a building next door to the Second School.
16On June 7, 2017, Ms. Keast was working in her office when the Member came into the office asking to speak with one of her colleagues who had an office in the same building. Ms. Keast replied that her colleague was not there. Ms. Keast testified that the Member then told her that he “kicked a student in the butt, but it’s not like he molested him or anything.” The Member had papers in his hand that he was waving around and mentioned that he would be off for a while. Ms. Keast testified that the Member did not give any other details about the encounter. Ms. Keast did not have any other interactions with the Member regarding this incident, she reported the issue to Human Resources the following day and made notes regarding the incident.
(2) The Member
(a) The Member’s testimony
17Immediately following the opening statement by the College, the Member provided his opening statement. The College and the Panel did not want to interrupt the Member but there was a concern that the Member was providing evidence during his opening statement. Since the Member was self-represented, it was queried whether it would be proper to allow the content of the opening statement to be considered as evidence (even though it was not provided under affirmation). The College consented to this approach. As a result, a transcript of the Member’s opening statement (Exhibit 6) was entered into evidence as his testimony. The Member was still given the opportunity to supplement his opening statement with additional evidence, and he was then cross-examined by College Counsel.
18The Member testified that, on October 7, 2014, at the First School, Student 1 was being disruptive with the educational assistant (“EA”) in the classroom. Student 1 got mad, ran out of the classroom, and in doing so, he ran over the EA who was blocking the door with her arm. As a result, the EA was knocked back into the hallway, and said to the Member to “get [Student 1]”. In response, the Member ran down the hall after Student 1, in order to stop him because Student 1 was “saying that he was [XXX] and he was going to run out into the hallway”. Student 1 suddenly “stopped on a dime” and began running backwards into the Member. The Member put his arms out to stop Student 1, directed Student 1 to a bench, at which point Student 1 began screaming “you’re fucking choking me”. The Member and Student 1 then went to the office to speak with Ms. Fafard. The Member requested but was not permitted to speak with Student 1’s [XXX] following this incident.
19The Member further testified that, on June 6, 2017, at the Second School, the Member was sitting at his desk in the classroom, and his students were acting up and being disruptive. The students were making plasticine balls roughly the size of baseballs and throwing them around the classroom, and one of these balls was thrown at the Member. In response, the Member sent the students out into the hallway and rang the bell for someone from the administration office to supervise the students, but there was no answer from the office. The students continued throwing around a plasticine ball in the hallway and one was thrown back into the classroom, almost hitting another student. Student 2 ran into the classroom, grabbed the ball, and threw it back out at his friends. Student 2 then began slamming the classroom door at the other students that were in the hallway. The Member attempted to get Student 2 back into the hallway, and in response Student 2 began to run around the classroom. The Member put his leg out to stop Student 2 from continuing to run around, but the student jumped and started running the other way. The Member then heard another student in the class say “let’s get [the Member] in trouble and say he kicked [Student 2] and get him fired”.
20The Member reported the incident to administrators, to the Board’s Human Resources department, and to his union. However, the Member believed that he did not receive proper support and assistance with this incident from the Board or from his union representatives. The Member further testified that when he reported the incident to Ms. Keast following the incident, he told her that he was accused of kicking a student, not that he kicked a student.
21The Member testified at length about the toxic work environment at the Board, that he was disliked and targeted by Board administration and by members of his community. He submitted a letter, dated February 4, 2018, which he had written with the intention of making a formal complaint about harassment that he experienced from administrators at the Board (Exhibit 9). In this letter, he outlined that he was not supported by administration in sending disruptive students to the office, and he was left with no choice but to keep these students in the classroom. This led to the unsafe situations described earlier in his testimony. The Member testified that he and his wife have experienced violence and harassment online and in person. Additionally, the Member believed that many of the parents of his students did not like him and participated in the harassment, which in turn gave his students permission to disrespect him, creating a dangerous environment in his classroom. The Member submitted that this dangerous environment and the harassment that he experienced from the Board and from his community led to the allegations that are the subject of this hearing.
22In cross-examination, the College admitted the Member’s statement regarding this incident made on September 29, 2017 to an officer of the Ontario Provincial Police (“OPP”) (Exhibit 12). In this statement the Member stated that some students were throwing playdoh around the room and he placed them in the hallway in response. One of the students [Student 2] came back into the class, continued to throw playdough around the room, and was wrestling with the other kids at the door. When Student 2’s back was to the Member, the Member made a kicking gesture behind him; however, the Member stated that his foot did not make contact with Student 2. At another point in his statement, the Member told the OPP officer that his foot “brushed the back part of [Student 2’s] trousers”. Later in his police statement, the Member described it as a “Monty Python kick”, and that it was meant as a joking gesture.
(b) Documentary Evidence
23In support of his testimony, the Member submitted four documents into evidence. First, a document of texts which the Member submitted was a collection of comments posted on Facebook by members of his community (Exhibit 8). Second, a typed, unsigned letter which the Member submitted was written by Student 1 (Exhibit 10). This letter states that Student 1 was not being truthful when he claimed the Member choked him in grade [XXX]. Third, a typed and signed letter, dated April 22, 2019, which the Member submitted was written by [XXX] (“Student 3”), who was a student in the Member’s class at the Second School in 2017. In this letter, Student 3 writes that the Member did not kick Student 2, and that Student 3 apologizes for reporting that the Member kicked Student 2. Fourth, a photograph, taken by the Member, of the plasticine ball that Student 2 threw at the Member. In the picture, the ball is on a scale, which shows the ball to weigh 250 grams.
E. SUBMISSIONS OF COLLEGE COUNSEL
24College Counsel reviewed the relevant evidence with the Panel and submitted that the College’s witnesses had a good memory of the events and that they were credible witnesses. The Member, on the other hand, was not credible due to the numerous inconsistencies between his evidence at this hearing and the statements that he made about these events previously. College Counsel submitted that the evidence of their witnesses – Ms. Fafard, Student 2, and Ms. Keast – proves each of the allegations of misconduct on a balance of probabilities, and that the Panel should find that the Member engaged in professional misconduct as alleged, apart from the withdrawn allegations.
25College Counsel further submitted that the Panel should not put any weight on the letters submitted by the Member and purported to be from Student 1 and from Student 3. According to College Counsel, these letters are not reliable as the students are not here to be cross-examined and their evidence cannot be tested.
F. SUBMISSIONS OF the member
26The Member submitted that the Panel should rely on his testimony and the letters from Student 1 and Student 3 instead of the evidence of the College’s witnesses. He submitted that these allegations are the result of a campaign of harassment against him from the Board’s administration and from members of his community, many of whom are related to the students who were in his class during the alleged incidents. He submitted that the Panel should rely on the Facebook comments and on his letter to the Board as evidence of this harassment. In the Member’s submission, he did not receive appropriate support from the Board’s administration in his teaching, and he was therefore not able to effectively discipline his students. Finally, the Member submitted that students falsely reported that he kicked Student 2 and that the evidence regarding this incident was not to be believed. Overall, the Member denied that he committed professional misconduct and submitted that the Panel should find that the College has failed to prove the allegations.
G. DECISION ON FINDING
27The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.
28The Panel granted the College’s request to withdraw the subsections 1(5), 1(16) and 1(17) allegations.
29Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds 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) and 1(19).
H. REASONS FOR DECISION
30The Panel has carefully reviewed the evidence and submissions presented in this hearing. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.
31As stated above, the College has the burden of proving the allegations. This means that first, the College must prove that the behaviour alleged in the Notice of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct.
32In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ evidence to accept, the Panel has considered the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence (see: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC) (“Pitts”)). The Panel can also determine credibility based on logic, common sense, and its experience.
(1) Credibility Assessments and Factual Findings
(a) Events at the First School – particular 4
33The Panel finds that Ms. Fafard was a credible and reliable witnesses. The Panel accepts the notes that she made as to her interview with Student 1 as admissible for the truth of their contents pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Ms. Fafard’s notes were made on the same day that she spoke to Student 1 and to the Member. Additionally, Ms. Fafard had a good independent recollection of her conversation with Student 1. The Panel noted that her oral testimony was consistent with her notes. Overall, the Panel finds that Ms. Fafard’s notes of her interview with Student 1 constitute reliable documentary evidence of the events described therein.
34Ms. Fafard’s testimony has all of the credibility markers as described in Pitts. While Ms. Fafard did not observe the Member choking Student 1, she heard the commotion in the hallway, she heard Student 1 yell “don’t choke me”, and she made observations about Student 1’s demeanor following the incident. She testified that Student 1 was very upset and that he asked to call his [XXX]. Ms. Fafard had a good memory of the events testified to and she was honest if she could not recall details. Furthermore, her evidence was consistent with her notes that were made on the day of the incident. Overall, Ms. Fafard’s evidence was reasonable, and it was clear and consistent throughout.
35The Panel had concerns about the Member’s credibility and reliability regarding the allegations relating to Student 1. The Panel is particularly concerned with the inconsistency between the report that the Member made on the day of the incident and his testimony in this hearing. On the day of the incident, the Member wrote and signed a statement that Student 1 was disruptive in class, that the student was running around the classroom, and that he eventually ran out into the hallway. In his statement, the Member wrote that he pushed his desk around to try and stop Student 1 from running around the classroom and that he ran into the hallway after Student 1. However, at this hearing, the Member testified that the student ran into the hallway, pushed the EA, and screamed that he was going to [XXX]. Then he testified that the student began to run backwards into the Member. The Panel finds this implausible. If Student 1 threatened to [XXX], or if the Member ran after Student 1 because the Member believed that Student 1 was [XXX], it is reasonable that the Member would have reported that belief to Ms. Fafard or another member of the administration at the time of the incident. It is not reasonable for the Member to have failed to mention this justification to anyone until the disciplinary hearing six years later. The Member’s actions (i.e. pushing desks around to try and cut Student 1 off, chasing after Student 1 and grabbing him) simply do not make sense if the Member was, in fact, concerned about Student 1’s well being and trying to protect Student 1. Overall, the Panel finds that the Member’s written statement made on the day of the events is a much more reliable and realistic description of the events that occurred on that day.
36The Panel placed almost no weight on the contents of the letter which the Member submitted was written by Student 1. The letter provided was not dated, not signed, and Student 1 did not attend the hearing to authenticate the letter, confirm the contents, or to be cross-examined on the contents. As the Panel could not determine the authenticity or reliability of this letter, it could not place any significant weight on its contents.
37The Panel finds that the College has proven that the Member made inappropriate contact with Student 1 at the First School. In particular, the Panel finds that the College has proven that the Member touched Student 1 with his arm, and that the Member grabbed Student 1’s hand or shoulder. To find that the Member engaged in inappropriate physical contact with Student 1, it is not necessary for the Panel to find that the Member specifically choked Student 1. However, the Panel notes that the evidence as to whether the Member choked Student 1 was very limited and consisted only of a statement from Student 1 to Ms. Fafard that the Member “tried” to choke him and the evidence that Student 1 yelled “don’t choke me”. According to Ms. Fafard, Student 1 did not provide details as to how exactly the Member choked him. The Panel finds this evidence insufficient to prove that the Member choked Student 1 on a balance of probabilities. The Panel Finds that Ms. Fafard’s testimony and the Member’s statement written on October 7, 2014 show that Student 1 was acting out in class and running around the classroom. In response, the Member chased Student 1 around the classroom and pushed his desk to try and cut Student 1 off. Student 1 ran out of the classroom, the Member chased him, caught up to him, inappropriately used his arm to redirect Student 1, and then grabbed Student 1’s hand to direct him to the office. As such, the College has proven, on a balance of probabilities, that the Member made inappropriate physical contact with Student 1.
(b) Events at the Second School – particular 6
38The Panel finds that Student 2 was a credible and reliable witness. He was able to recall the events of June 6, 2017 and seemed to have a good memory of the incident. Student 2’s testimony was consistent with the statement that he made on the day of the incident, and he was not shaken on his version of events during cross-examination. Furthermore, Student 2 was forthcoming regarding details of the incident that did not paint him in a favourable light (i.e. that he was loud, that he bothered people in the class, and that he was told to leave the classroom by the Member). Overall, the Panel finds that Student 2 was a credible witness and was reliable in his testimony and, as such, the Panel has relied on Student 2’s testimony in making its findings regarding the events at the Second School.
39The Panel finds that Ms. Keast was also a credible and reliable witness. She spoke to the Member shortly after the events and took contemporaneous notes of her conversation with the Member. Ms. Keast seemed to have a good memory of her conversation with the Member and her testimony was consistent with her notes taken on the day of the conversation. The Panel finds that Ms. Keast’s evidence is plausible and reasonable overall. However, the Panel is mindful that Ms. Keast did not observe the events and did not interview any student that observed the events. As such, the Panel does not rely on her evidence to conclusively make a finding that the Member kicked Student 2. Her evidence provides context to the Member’s demeanor following the incident, and may support an inference that the Member kicked Student 2 because he admitted to kicking a student in her office. In making its finding regarding the incident at the Second School, the Panel has considered Ms. Keast’s testimony in combination with and in context of Student 2’s testimony.
40The Panel had concerns with the Member’s testimony regarding the incident at the Second School. The Member’s testimony was inconsistent with his prior statements. When the Member was interviewed by the OPP approximately four months after the incident, he described his actions as a “Monty Python kick”, a joking gesture, or as simply brushing Student 2’s buttocks with his foot. In this hearing, the Member seemed to downplay the severity of his actions. He testified that he did not kick Student 2 but that he “stuck out his leg” to stop Student 2 from running around. This inconsistency in the Member’s testimony makes the Member’s testimony on this issue unreliable and the Panel has therefore not relied on it to determine what occurred during the alleged incident at the Second School.
41The Panel has placed almost no weight on the contents of the letter allegedly written by Student 3. As with the letter from Student 1, this letter has not been authenticated by the Member. Student 3 did not testify, could not confirm that he wrote the letter, and was not available for cross-examination on the contents. Furthermore, the Panel has not relied on any reports from Student 3 to make its finding and, as such, any letter that claims that Student 3 made a false report is of limited value to the Panel.
42The Panel finds that the College has successfully proven on a balance of probabilities that, on or about June 6, 2017, the Member kicked Student 2. The evidence of Student 2 and Ms. Keast proves that Student 2 was acting up, that the Member kicked him out of the class, that Student 2 came back into the class and was misbehaving, and that the Member kicked him in response to his behaviour. The Panel finds that Student 2 was credible in his testimony that he was kicked forcefully and that he was hurt as a result.
43The Panel is not required to and does not make a finding about the Member’s intent in kicking Student 2. However, even if the Member’s intent was to make a comical gesture with the kick, or to stick out his leg to stop Student 2 from running around, both of these actions would constitute inappropriate physical contact with Student 2. It is inappropriate for a member to make a kicking motion so close to a student that a student can be in danger of getting hurt. And it is similarly inappropriate to use physical means to stop a student from running around the classroom.
(2) Legal Conclusions
44The Panel finds that the Member physically abused a student contrary to subsection 1(7.1) of Ontario Regulation 437/97. By kicking Student 2, the Member physically abused a student. The Panel does not accept the Member’s explanation that he meant for the kick to be a comedic gesture and finds that the Member kicked Student 2, and that Student 2 was in pain as a result. This was entirely inappropriate behaviour by the Member and amounts to physical abuse of a student.
45The Panel finds that the Member failed to comply with the Act or the regulations or the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. As the Member’s conduct involved physical abuse of a student, his conduct was so notorious that expert evidence is not required to make a finding that he breached the standards of the profession (see: Novick v. Ontario College of Teachers, 2016 ONSC 508). The Panel finds that the Member failed to comply with section 32 of the by-laws, which includes the ethical standards for the teaching profession. The ethical standard of “care” encourages members to have “compassion, acceptance, interest and insight for developing students’ potential”. The Member defied this standard by his physical abuse of Student 2. Further, the ethical standard of “respect” encourages members to “honour human dignity, emotional wellness and cognitive development”. The Member failed to do so by kicking Student 2 in front of his class.
46The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(c) requires members to demonstrate the highest regard for a number of virtues, and it is commonly understood to mean that members must behave with integrity and act as positive role models for students. The Member failed to comply with this duty through his conduct with both Student 1 and Student 2. In both instances, the Member used physical means to deal with students who were misbehaving in some way. In doing so, the Member set a bad example for students, who should be taught to deal with conflict without physical intervention. The Member resorted to physical means instead of using effective classroom management strategies, thereby setting a poor example for students and failing to comply with the Education Act.
47The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The teaching profession does not tolerate physical abuse of students by its members. Members are entrusted with the safety of children and are expected to keep their students safe, which the Member failed to do by his misconduct. Members are expected to exercise good judgment and compassion for students and not to resort to physical discipline out of frustration. It was entirely inappropriate for the Member to engage in classroom and student management techniques that included inappropriate physical contact with students and as such his conduct was clearly disgraceful, dishonourable, and unprofessional.
48Similarly, the Panel finds that the Member’s conduct is unbecoming a member of the profession contrary to subsection 1(19) of Ontario Regulation 437/97. Through his physical abuse of Student 2, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers.
I. PENALTY
49The Tribunals Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.
Date: December 16, 2021
Hanno Weinberger, OCT Chair, Discipline Panel
Claudette Rutherford, OCT Member, Discipline Panel
Myrna Tulandi Member, Discipline Panel