DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Holbrough 2021 ONOCT 146

Date: 2021-11-30

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

Stewart Bradley Holbrough, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

STEWART BRADLEY HOLBROUGH (REGISTRATION #418237)

PANEL: Stéphane Vallée, OCT, Chair

Jessica Saffran Reimers, OCT

Pauline Smart

HEARD: November 24, 2021

Ava Arbuck, for the Ontario College of Teachers

Jack Brown, for Stewart Bradley Holbrough

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 24, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Stewart Bradley Holbrough (the “Member”) did not attend the hearing but had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated July 22, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Stewart Bradley Holbrough 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 abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(e) he failed to comply with the Act or the regulations or 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. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Stewart Bradley Holbrough is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Lakehead District School Board (the “Board”) as a [XXX] teacher at [XXX] (the “School”) in Thunder Bay, Ontario.

Inappropriate Comments and Conduct, 2009-2013:

3. At all material times between 2009 and 2013, Student 1 was a female student at the School.

4. Throughout 2009-2013, the Member made the following comments and engaged in the following conduct in relation to Student 1. The Member:

(a) called Student 1 “pretty”;

(b) told Student 1 that he liked the length of her hair and that her “blue eyes pop”;

(c) complimented Student 1, “you look great”, when Student 1 dressed up;

(d) offered Student 1 drives home from School;

(e) on one occasion drove Student 1 and her friend to a coffee shop where he dropped them off;

(f) suggested to Student 1 that she could “live in his house for free – move into his basement” when she was [XXX];

(g) asked Student 1 to babysit his kids when she was looking for a job;

(h) told Student 1 words to the effect of, “lots of people around here love you, but I’m the only one who’ll say it”;

(i) told Student 1 when she was wearing a long-hanging necklace, words to the effect of, “your necklace shouldn’t hang lower than your boobs” and offered to fix it;

(j) gave Student 1 gifts consisting of a [XXX] when Student 1 was in Grade [XXX]; and,

(k) engaged in electronic communications with Student 1 when he:

(i) added Student 1 as a friend on Facebook at the end of her Grade [XXX] year;

(ii) liked Student 1’s pictures and sent Student 1 private Facebook messages; and,

(iii) added Student 1’s best friend, a Grade [XXX] female student, as a friend on Facebook and messaged her during the summer of 2011 including asking her to “please say hi to [Student 1] for me”.

5. When Student 1 was in the Member’s Grade [XXX] class, the Member engaged in physical touching of Student 1 when, on more than one occasion, the Member:

(a) ran his hands through Student 1’s hair;

(b) touched Student 1’s arms and shoulders; and,

(c) ran his left hand from Student 1’s shoulder to the small of her back when seated beside her.

6. Student 1 believed from the Member’s conduct and attention that he favoured her, and over time she felt increasingly uncomfortable around the Member as a result of his comments and conduct.

Inappropriate Comments and Conduct, 2013-2016:

7. During the years 2013-2016, the Member engaged in the following conduct and made the following comments:

(a) on February 19, 2013, the Member said in front of his Grade [XXX] class words to the effect of, “you stupid ass” in relation to a female student he just sent to the office;

(b) on May 15, 2014, when describing a [XXX] problem to his class, the Member said words to the effect of [XXX] being “easy like [X]”, referring to a female student in the class;

(c) the Member watched female Physical Education classes and a predominantly female vocal class on occasion, which made some female students feel uncomfortable;

(d) the Member referred to a female student using a nickname he gave her, which made her feel uncomfortable;

(e) the Member asked another female student the size of the Lululemon pants she was wearing, telling her he would like to buy a pair for his niece who looked to be about the same size;

(f) several female students reported that they witnessed the Member staring at their or other female students’ breasts and buttocks, which made them feel uncomfortable;

(g) several female students reported that the Member stood, sat, or hunched over them from behind in a manner that was too close and in their personal space when he assisted them with their work during class, which made them feel uncomfortable.

8. The student referred to in paragraph (e) above did not answer the Member’s question because it made her feel awkward and uncomfortable, including because she knew other students heard what he said. After this incident, the boys in the class teased this student by asking her, “what size are your pants today?”.

9. As a result of feeling uncomfortable because of the Member’s conduct in paragraphs 7 (f) and (g) above, several female students changed the way they dressed when they attended the Member’s class, and some would not approach the Member for extra help when they needed it.

Inappropriate Comments and Conduct, 2016-2017:

10. During the fall semester of the 2016-2017 academic year, the Member made the following comments to Student 3, a female student in his class:

(a) when Student 3 walked up to his desk to hand in completed work, the Member told her, “those pants look good on you from the front”;

(b) after Student 3 put her paper on the Member’s desk and started to walk away, the Member said, “they also look good from behind”.

11. Student 3 was shocked at the Member’s comments, which made her feel uncomfortable and which was overheard by some students in the class. Student 3 was struggling with [XXX], but she felt too uncomfortable around the Member as a result of his comments to approach him for help.

12. During the fall semester of the 2016-2017 academic year, the Member made the following comments to Student 4, a female student in his class:

(a) when Student 4 flexed her muscles to show her friend her fitness progress, the Member interjected and said, “I can see your definition, you’re looking good.”;

(b) on another occasion the Member said to Student 4 words to the effect of, “you should be proud. You’ve put on a lot of muscle.”;

(c) on more than one occasion the Member told Student 4, “your pants look good on you”.

13. Other students noticed the Member treated Student 4 differently than he treated other students in class, such as engaging her in regular conversation and permitting her to leave class early. Student 4 believed from the Member’s attention that the Member favoured her. As a result of the Member’s comments and attention, Student 4 was uncomfortable going to the Member’s class.

14. During September 2016, the Member engaged in the following conduct in relation to Student 5, a female student in his class:

(a) on occasion the Member hunched over Student 5’s shoulder from behind her while she was doing her work in a way that made Student 5 feel that the Member was looking down her shirt, which made her feel uncomfortable;

(b) on one occasion when the Member stood behind Student 5 to help her with her work, the Member had his hand on her chair and then rubbed his hand down her back.

Board Investigation:

15. On October 27, 2016, the Board removed the Member from the classroom and placed him on a paid leave of absence. On February 9, 2017, the Board terminated the Member’s employment. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated February 9, 2017.

Prior Board Discipline:

16. The Member received letters from the Board in the form of memoranda, expectations, warnings and discipline relaying the Board’s concerns regarding his interactions with students between 2000 and 2014. Attached hereto and marked as Exhibit “C” are copies of the Board’s letters to the Member.

17. The Member completed a boundaries course on September 16, 2014. Attached hereto and marked as Exhibit “D” is a copy of OSSTF’s letter confirming that the Member completed the course, dated September 17, 2014.

18. The Member’s association grieved the Board’s retention of five letters of a disciplinary nature and the Board’s termination of the Member’s employment. The Board and the Member entered into Minutes of Settlement signed November 8, 2017, in which the Board paid the Member an agreed upon sum in exchange for the Member’s agreement to never reapply for employment with the Board, among other terms.

PLEA OF NO CONTEST

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

20. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7), 1(7.2), 1(7.3), 1(14), 1(15), 1(18), 1(19). The Member further acknowledges that the Uncontested Facts constitute sexual abuse as defined in Section 1 of the Act.

21. 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

22. 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.

23. 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

6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) 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. The Panel granted the request.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 24, 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(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of students as defined in section 1 of the Act.

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 18 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in a pattern of inappropriate conduct towards students, including making remarks of a sexual nature towards them and engaging in unwanted touching of students.

9The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. For instance, the Member referred to his female students using derogatory and disrespectful terms such as “you stupid ass” and “easy like [X]”. Moreover, on numerous occasions, the Member made inappropriate comments about the physical appearance of his female students including: telling them that their pants looked good on them; asking a student about the size of her pants; and telling Student 4 that he could see her definition and that she looked good. The Panel finds that the Member’s comments towards his female students were highly inappropriate, disrespectful and offensive. As adults who hold a unique position of trust and authority, it is verbally abusive for members to comment on the physical appearance of students or to make other demeaning or sexually suggestive comments to them.

10The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member’s inappropriate conduct towards his female students made them feel uncomfortable. Among other things, the Member displayed favouritism towards Student 1 and Student 4, watched female Physical Education classes, stared at students’ breasts and buttocks and hunched over female students from behind in a manner that invaded their personal space. The Member’s actions made students feel awkward and uncomfortable. As a result, some students changed the way they dressed when they attended the Member’s class while others would not even approach the Member for academic help when they needed it. Given the power imbalance that exists between a teacher and a student, it was emotionally abusive for the Member to engage in conduct that made students feel awkward and uncomfortable including with their peers, as the Uncontested Facts show that male students then teased at least one female student by repeating a comment the Member had made to her. As such, the Member’s conduct amounts to psychological or emotional abuse of students.

11The Member’s conduct constitutes sexual abuse of students contrary to subsection 1(7.3) of Ontario Regulation 437/97 and as defined in section 1 of the Act. The definition of sexual abuse at section 1 of the Act includes behaviour or remarks of a sexual nature by a member towards a student. The Member stared at the breasts and buttocks of female students. Moreover, the Member made several sexually suggestive remarks to female students. Among other things, the Member told Student 1 that her necklace should not hang lower than her “boobs” and offered to fix it and told Student 1 that he is the only one who will say he loved her. The Panel accepts College Counsel’s submissions that the Member’s behaviour and remarks to female students were sexual in nature. Additionally, the Panel places significant weight on the fact that the Member has pleaded no contest to the allegation of sexual abuse. The Panel therefore finds that the Member’s conduct meets the definition of sexual abuse at section 1 of the Act.

12The Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the ethical standards and the standards of practice for the teaching profession. By engaging in unwanted touching of students and by making sexualized remarks to students, the Member failed to comply with these standards. College Counsel referred the Panel to the various ethical standards and standards of practice that were breached by this behaviour. The Member does not contest that this behaviour constitutes such a breach and the Panel makes that finding.

13The 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)(b) provides that it is the duty of a teacher to encourage pupils in the pursuit of learning. Section 264(1)(c) is commonly understood to mean that teachers must serve as positive role models. The Member’s conduct was antithetical to these principles. He abused his trusted and privileged position as a teacher by repeatedly making remarks of a sexual nature to female students and by engaging in behaviour that made several students feel uncomfortable at school and that resulted in their male peers teasing at least one female student. Moreover, the Member’s inappropriate conduct discouraged several female students from approaching the Member for extra help when they needed it. The Member has, accordingly, failed to fulfil the fundamental duties of a teacher.

14The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is completely unacceptable for teachers, who are expected to be upstanding members of the community and to maintain appropriate professional boundaries with students, to make unwanted physical contact with students and to make sexually suggestive remarks to or about students. The Member’s conduct was not a momentary lapse of judgment as it spanned many years and involved several female students. Such conduct demonstrates serious moral and professional failings by the Member. It casts doubt on the Member’s ability to hold a teaching position without putting students at risk. The Member’s conduct can therefore be characterized as disgraceful, dishonourable and unprofessional.

15Finally, the Member’s conduct, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. When parents send their children to school, they expect that they will be safe, both physically and emotionally, and that their teachers will not engage in behaviour or make remarks of a sexual nature to them. The Member’s egregious conduct has undermined the reputation of the teaching profession and has violated the trust that parents, students, and the public place in teachers.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 24, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. The Member is directed to receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

G. REASONS FOR PENALTY DECISION

17The Member’s professional misconduct consisted of or included the sexual abuse of students, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and notes that these mandatory penalty provisions apply retrospectively in this case pursuant to section 63.2 of the Act.[2] The Panel notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel finds that a written reprimand is appropriate in view of the parties’ agreement. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but notes that the parties are jointly asking it to confine its order to the mandatory ones. The Panel finds it reasonable not to make these additional orders in light of the Member’s plea of no contest and joint submission on penalty, particularly in light of the high standard that must be met before rejecting a joint submission on penalty.

18The Panel denounces the Member’s misconduct in the strongest terms.

Date: November 30, 2021

Stéphane Vallée, OCT

Chair, Discipline Panel

Jessica Saffran Reimers, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel

1Allegation withdrawn at the request of College Counsel

2Although this mandatory penalty provision was not in force at the time of the Member’s sexual abuse of his students (i.e., in 2009-2013, fall semester of 2016-2017 and September 2016), section 63.2 of the Act provides that the mandatory penalty provisions at section 30.2 of the Act apply retrospectively where the sexual abuse occurred before April 3, 2019 and no order has been made under subsection 30(4) of the Act before then. These conditions are met in this case and the Panel must therefore apply the mandatory penalty provisions set out at section 30.2 of the Act.