Citation: Ontario College of Teachers v Nugent 2021 ONOCT 147

Date: 2021-11-23

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

Jennifer Louise Nugent, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JENNIFER LOUISE NUGENT (REGISTRATION #518636)

PANEL: Hanno Weinberger, OCT, Chair

Élaine Legault

Jennifer McMaster, OCT

HEARD: August 20 and September 20, 2021

Danielle Miller, for the Ontario College of Teachers

Naomi Greckol-Herlich and Parmbir Gill, for Jennifer Louise Nugent

Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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, or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on August 20 and September 20, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Jennifer Louise Nugent (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing on September 20, 2021, for the delivery of her 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

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.

4Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated December 4, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Jennifer Louise Nugent is guilty of professional misconduct as defined in the Act in that:

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

(b) she 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;

(c) she 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);

(d) she 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) she 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);

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

C. STATEMENT OF UNCONTESTED FACTS

6College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

Jennifer Louise Nugent 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 Kawartha Pine Ridge District School Board (the “Board”) as a long-term occasional teacher.
Student 1 was a male student at [XXX] (“the School”). He attended the School in the [XXX] academic years. He completed his grade [XXX] year in June 2014 and completed [XXX]study in June [XXX]. Student 1 turned 18 years of age on [XXX] 2014.
In the academic years 2011-2012 and 2012-2013, the Member taught at the School. In addition to her teaching duties, the Member was involved in a number of extra-curricular activities, including overseeing the school’s [XXX].
During the 2011-2012 [XXX] and 2012-2013 [XXX]academic years, Student 1 participated in a number of school [XXX] which the Member assisted in and/or oversaw.
In 2014, the Member founded [XXX], a [XXX] company in which [XXX] school students were involved and which [XXX] and [XXX] on Board property, among other locations.
During the 2013-2014 and 2014-2015 academic years, Student 1 participated in [XXX] through [XXX] and was [XXX] by the Member in these performances. At that time, the Member was teaching at other schools with the Board, as a long-term occasional teacher, but did not teach any of Student 1’s classes.
In or about the 2013-2014 academic year, the Member engaged in an inappropriate relationship with Student 1 which included:

(a) exchanging multiple text messages of a personal nature with Student 1;

(b) expressing feelings of a personal nature she had for Student 1;

(d) holding hands with Student 1;

(e) at one time, engaging in flirtatious behaviour with Student 1, including in the presence of other students during [XXX].

Beginning on [XXX] 2014(on Student 1’s 18^th birthday) until December 2014, and including while Student 1 completed his [XXX] study at the School, the Member:

(a) took Student 1 on a day-trip to [XXX], Ontario;

(b) invited Student 1 to her home;

(d) provided alcohol to Student 1 and consumed alcohol with him while he was under age;

(e) engaged in electronic communications of a personal nature with Student 1 including text messages, Facebook messages, and e-mails;

(f) kissed Student 1;

(g) engaged in physical intimacy of a sexual nature with Student 1.

In December 2014, after Student 1 ended the relationship with the Member, the Member sent him a communication via Facebook telling him that she [XXX]. Student 1 interpreted the Member’s message as an [XXX]. This distressed the student and led him to [XXX].
During the 2014-2015 academic year, the Member sent numerous electronic messages to Student 1. These communications were of a personal and intimate nature, and included references to: the challenge for both of them in keeping their relationship a secret; her regret at the termination of their relationship; her intense on-going love for the student; memories of their first kiss; jealousy that Student 1 had a girlfriend; and Student 1’s behaviour having hurt the Member.
In these communications, the Member expressed her desire to resume her relationship with Student 1 at the end of the school year stating, “If we do make it through the year, and summer vacation comes, and suddenly, without question, we’re allowed to be a couple…”
Following Student 1’s completion of his secondary school studies in June [XXX], the Member continued to engage in a personal relationship with Student 1, which included:

(a) Taking Student 1 on a [XXX] trip in August [XXX];

(b) Engaging in electronic communications of a personal nature with Student 1.

In November 2019, Student 1 disclosed to the Board his past relationship with the Member and the fact that his relationship with the Member had been traumatic for him and caused him feelings of guilt and distress. The Board began an investigation.
On January 17, 2020, the Member resigned from the Board.
On September 27, 2002, the Ontario College of Teachers approved a professional advisory related to sexual abuse and sexual misconduct. Attached hereto and marked as Exhibit “B” is a copy of the College advisory.
On February 23, 2011, the Ontario College of Teachers approved a professional advisory on the use of electronic communications and social media. Attached hereto and marked as Exhibit “C” is a copy of the College advisory.

PLEA OF NO CONTEST

By this document, the Member does not dispute that the Discipline Committee can accept as correct the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member understands that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member does not contest that the alleged conduct described at paragraph 8 constitutes sexual abuse as defined in Section 1 of the Act.
By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

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

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

(d) she understands that the Discipline Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) she 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 her name, shall be published in the official publication of the College;

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

(g) she understands and acknowledges that she 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 the circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

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 September 20, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student 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 17 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above.

9On August 20, 2021, the parties made extensive submissions in relation to the subsection 1(7.2) and 1(7.3) allegations. Both parties agreed that Student 1 was a “student” for the purposes of making a finding under these subsections, before he turned 18 years old. They also agreed that the evidence at paragraph 8 of the Uncontested Facts is sufficient for making these findings. However, they disagreed about whether Student 1 could be considered a “student” after he turned 18 years old, and whether the Panel could rely upon the additional evidence at paragraphs 9-14 to make a finding under these subsections. The Panel addresses the parties’ respective positions about these issues below.

10During its deliberations and in the context of preparing its Decision and Reasons, the Panel sought Independent Legal Counsel’s (“ILC”) advice on the evidentiary issues described above. In summary, ILC advised the Panel that it should determine when Student 1 was a “student” for the purposes of an emotional abuse finding. This would inform the Panel as to the evidence it could rely on to make this finding. This advice was predicated on the fact that the language of Ontario Regulation 437/97, subsection 1(7.2), frames the alleged psychological or emotional abuse to “a student or students.” In relation to the subsection 1(7.3) allegation, ILC advised the Panel that it should restrict its finding of sexual abuse to the evidence contained in paragraph 8 of the Uncontested Facts only, in light of the language of the agreement.

11On September 20, 2021, the Panel rendered its decision on finding as set out above, but had not finalized its reasons. ILC subsequently informed the parties by email of her advice to the Panel. On September 23, 2021, the Panel received additional submissions from the parties on ILC’s advice. The additional submissions received by the Panel following its September 20, 2021 finding of professional misconduct does not alter the Panel’s decision with respect to finding. The Uncontested Facts demonstrate that the Member engaged in an inappropriate relationship with Student 1 and that the Member psychologically or emotionally, and sexually abused Student 1.

(1) Student 1 is a “student” for the purposes of a finding under subsection 1(7.2) and 1(7.3) of Ontario Regulation 437/97

12At the outset, the Panel is mindful that the term “student” is not defined in the Act except at subsections 1(2) - 1(4) when allegations of sexual abuse or sexual misconduct are made and in other prescribed situations. These definitions were added to the Act when it was amended in December 2016. They did not exist at the time of the Member’s misconduct and the Act does not provide that these provisions apply retrospectively.

13The Panel accepts the parties’ submissions that Student 1 was a “student” for the purposes of making a finding under subsections 1(7.2) and 1(7.3) before he turned 18 years old. The Panel also accepts that the evidence at paragraph 8 of the Uncontested Facts is sufficient for making those findings. The Panel, accordingly, finds that the Member’s conduct set out at paragraph 8 of the Uncontested Facts support a finding of both psychological or emotional, and sexual abuse of a student.

14In light of this finding, the Panel believes that it is not necessary to determine whether Student 1 could be considered a “student” after he turned 18, and whether the additional evidence set out at paragraphs 9-14 of the Uncontested Facts also support a finding under these subsections. However, the Panel does so, given the parties’ disagreement in relation to this issue.

15College Counsel appeared to interpret ILC’s advice as saying that the Panel should look to the definition of “student” in subsection 1(2) of the current version of the Act when considering the allegation of emotional abuse. College Counsel referred the Panel to the definition of “student” in subsection 1(2) of the Act and submitted that this definition applies to a sexual abuse or sexual misconduct finding only and that the Panel therefore did not need to determine whether Student 1 was a “student” for the purposes of making a finding under subsection 1(7.2) of Ontario Regulation 437/97. Since the parties’ agreement stipulated that Student 1 was a student until June [XXX] (because he completed [XXX] that ended in June [XXX]), the College’s position was that the Panel could and should rely on the evidence at paragraphs 9-14 in order to make a finding under subsection 1(7.2) of Ontario Regulation 437/97, regardless of the subsection 1(2) definition of student (in the current version of the Act), which was inapplicable in the context of a 1(7.2) finding.

16In relation to subsection 1(7.3) of Ontario Regulation 437/97, College Counsel submitted that Student 1 was a “student” for the purposes of a sexual abuse finding and that the Panel should also rely on the additional evidence at paragraph 9 of the Uncontested Facts, given that it has the discretion to do so. College Counsel submitted that Student 1 met the definition of “student” in subparagraph 2(iii) of subsection 1(2) of the Act since: (1) Student 1 was enrolled in a school in Ontario; and (2) the Member was [XXX] Student 1’s performances through [XXX], which according to College Counsel, constituted “extra-curricular activities”. College Counsel did not agree that the language of Exhibit 2 (and particularly of paragraph 19 of the Plea of No Contest) prevented the Panel from taking the evidence of paragraph 9 into consideration. In the alternative, she submitted that, given the legislative intent of the Act, the Panel should find that Student 1 was a “student” for the purposes of a sexual abuse finding. She relied on Ontario College of Teachers v. Iason, 2017 ONOCT 89, Ontario College of Teachers v. Sperling, 2019 ONOCT 40 and Ontario College of Teachers v. Rollo, 2021 ONOCT 21, in support of this alternate position.

17On the other hand, Member’s Counsel submitted that since Student 1 was not a “student” (as defined in the Act) after he turned 18, the Panel should not rely on the Uncontested Facts at paragraphs 9-14 for makings its findings under subsections 1(7.2) and 1(7.3). Member’s Counsel submitted that the Panel should therefore rely only on the evidence at paragraph 8 of the Uncontested Facts, in making its findings of psychological or emotional, and sexual abuse. In relation to the Uncontested Facts at paragraphs 9-14, Member’s Counsel submitted that Student 1 does not meet the definition of “student” under subsection 1(2) of the Act because, at that time, Student 1 was over the age of 18 and the Member was never his teacher. Moreover, the Member was not involved in any “extra-curricular activities” as the [XXX] did not amount to “extra-curricular activities”, and none of the other conditions required to meet the definition of “student” at subsection 1(2) of the Act were met, according to Member’s Counsel. Member’s Counsel relied on Ontario College of Teachers v. Aboul Dahab, 2005 ONOCT 1, Ontario College of Teachers v. Hutton, 2002 ONOCT 9, Ontario College of Teachers v. Kelley, 2020 ONOCT 198, Ontario College of Teachers v. Oakley, 2021 ONOCT 12, Ontario College of Teachers v. Ward, 2006 ONOCT 44 and Ontario College of Teachers v. Jeffrey, 2003 ONOCT 22, in support of her submissions.

18Having considered the parties’ submissions, the Panel finds the following: (1) in addition to the evidence at paragraph 8 of the Uncontested Facts, it can rely on paragraphs 9-12 and 14 in support of its finding of psychological or emotional abuse; and (2) it will rely only on the Uncontested Facts at paragraph 8 in support of its finding of sexual abuse. The Panel’s reasoning is as follows.

19First, in relation to the finding of psychological or emotional abuse, the Panel finds that Student 1 can be considered a “student” at the material times set out in paragraphs 8, 9-12 and 14 of the Uncontested Facts. In determining that Student 1 was a “student” at the material times, the Panel turned to first principles and relied on the College’s broad public interest mandate, because there was no legislated definition of “student” at the time of the Member’s misconduct (and no transitional provisions under the Act to indicate that the current definition of “student” applies retrospectively). Therefore, the Panel did not rely on the parties’ submissions with respect to the interpretation of “student” under the current version of the Act.

20If, however, the Panel had relied on the definition of “student” in the current version of the Act, the Panel would have found that the definition of “student” only applies in relation to a finding of sexual abuse or sexual misconduct (as is expressly stated at subsection 1(2) of the Act). The Panel would have further found that, although the legislative definition of “student” under the Act does not specifically apply to findings of psychological or emotional abuse, it was nevertheless apparent that Student 1 was a student at all materials times, including after he turned 18 years old. This is based on a plain reading of paragraph 3 of the Uncontested Facts, which says that Student 1 had not completed his studies at the School until June [XXX]. If the parties had intended for Student 1 to not be considered a “student” during certain periods of time, they ought to have drafted their agreement accordingly.

21Returning to first principles, the Panel finds that Student 1 can be considered a “student” at the material times noted above in relation to the Panel’s finding of psychological or emotional abuse. Given the College’s clear mandate to protect the public interest pursuant to subsection 3(2) of the Act, the Panel finds that Student 1 can be considered a “student” for the purposes of making a finding under subsection 1(7.2).Iasonprovides that the legislative intent (prior to the December 2016 amendments) was to interpret the term “student” broadly, to include non-direct teacher-student relationships. The evidence in the present case is that, although the Member did not teach any of Student 1’s classes, Student 1 attended the School during the [XXX] academic years, and completed his studies at the School in June [XXX]. Therefore, despite the lack of a direct teacher-student relationship between the Member and Student 1, Student 1 was nevertheless a student at the material times. The Panel did not find Oakley to be of assistance in making its determination because the facts in that decision were materially different from the Member’s case. In Oakley, once one of the students had graduated, they were no longer considered to be a “student” for the purposes of making a 1(7.2) or 1(7.3) finding. However, in the case before the Panel, Student 1 had not apparently graduated. He completed [XXX] at the School, and was therefore not in a post-graduation situation.

22Given the evidence before the Panel, the case law provided, and the applicable legislation (including the College’s broad public interest mandate), the Panel finds that it would be overly restrictive to adopt the narrow definition of “student” put forward by Member’s Counsel. The Panel further notes that it would have made a finding of psychological or emotional abuse whether or not it relied on the Uncontested Facts at paragraphs 9-12 and 14, given that the Member did not contest that her conduct breached subsection 1(7.2) of Ontario Regulation 437/97. Therefore, the discussion of what evidence can appropriately be relied on is secondary, as it does not alter the Panel’s ultimate finding that the Member engaged in the psychological or emotional abuse of Student 1.

23Second, with respect to the evidence it can rely on in support of a finding of sexual abuse, the Panel will limit itself to the evidence set out at paragraph 8 of the Uncontested Facts. The parties expressly indicated, at paragraph 19 of Exhibit 2, that the specific conduct described at paragraph 8 of the Uncontested Facts constitutes sexual abuse. The Panel will not undermine the terms of the agreement by relying on additional evidence in support of a sexual abuse finding. The parties could have drafted their agreement more broadly (i.e., by not constraining the sexual abuse finding to paragraph 8) if they wanted the Panel to rely on other evidence in relation to this finding. Had the parties not included the restriction at paragraph 19 of the Exhibit 2, the Panel would have also relied on paragraphs 9, 11 and 12 of the Uncontested Facts in support of a finding of sexual abuse.

(2) The Member abused a student psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97

24The Panel finds that the Member abused a student psychologically or emotionally. The Member was in a position of trust and authority towards Student 1 for having overseen his [XXX] performances when he was in Grade [XXX] at the School and again when Student 1 was performing [XXX]. During the 2013-2014 academic year (i.e., when Student 1 was still under 18), the Member had an inappropriate relationship with Student 1, which included hugging him and flirting with him. The Panel finds that such behaviour by an adult in a position of trust towards a student would reasonably have a negative impact on the well-being of the student. Additionally, after Student 1 turned 18, the Member’s actions towards Student 1 became more egregious and included engaging in physical intimacy of a sexual nature with Student 1. In December 2014, after Student 1 ended the relationship with the Member, the Member sent him a message on social media indicating that she had [XXX]. This communication was distressing to Student 1, who interpreted the message as [XXX]. Furthermore, the Member sent various manipulative messages to Student 1 such as referring to the Member’s regret at the termination of their relationship and her intense on-going love for Student 1. In 2019, Student 1 disclosed to the Board that his relationship with the Member had been traumatic for him and caused him feelings of guilt and distress. The Panel finds that by engaging in such behaviour, the Member showed a complete disregard for Student 1’s well-being. As such the Member’s conduct amounts to psychological or emotional abuse of a student.

(3) The Member sexually abused a student contrary to subsection 1(7.3) of Ontario Regulation 437/97 and section 1 of the Act

25The Panel finds that the Member sexually abused Student 1, contrary to subsection 1(7.3) of Ontario Regulation 437/97 and section 1 of the Act. The definition of sexual abuse at section 1 of the Act includes touching and behaviour or remarks of a sexual nature by a member towards a student. The Panel finds that the Member sexually abused Student 1 by having an inappropriate relationship with Student 1, in the 2013-2014 academic year. The Member’s conduct included: hugging Student 1; holding hands with Student 1; expressing feelings of a personal nature which she had for Student 1; and engaging in flirtatious behaviour with Student 1. The Panel accepts that this conduct meets the definition of sexual abuse under the Act. In coming to this conclusion, the Panel placed significant weight on the parties’ agreement that the conduct described in paragraph 8 of the Uncontested Facts amounts to sexual abuse.

(4) The Member 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)

26The 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 hugging and flirting with Student 1, which amounts to sexual abuse of a student, the Member failed to comply with these standards. Sexual abuse is misconduct which is so notorious and offside what is acceptable that expert evidence is not required to prove the breach of the professional standards.

(5) The Member 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)

27The 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) is commonly understood to mean that teachers are expected to act as positive role models and conduct themselves morally, in all circumstances where members interact with students. The Member’s conduct was antithetical to these principles. In addition to her sexually abusive behaviour towards Student 1 in 2013-2014, when Student 1 turned 18, the Member invited him to her home, slept with him in the same bed, kissed him and engaged in physical intimacy of a sexual nature with him, among other things. Moreover, the Member provided alcohol to Student 1, who was underage and consumed alcohol with him. The Member blatantly ignored the emotional harm that would be caused to Student 1 by her actions. By engaging in such immoral and abusive conduct, the Member failed to fulfil the fundamental duties of a teacher.

(6) The 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)

28The Panel finds that Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. It is unacceptable for a teacher, who is expected to be an upstanding member of the community, to have an inappropriate relationship with a student and to hug, flirt and hold hands with a student. The Member’s conduct was not a momentary lapse of judgment as this relationship developed over the course of multiple academic years. By the 2014-2015 academic year, the Member and Student 1 became more physically intimate and the Member even expressed her desire to resume her relationship with Student 1 at the end of the academic year. 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.

(7) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

29Finally, the Member’s egregious conduct, as described above, is also unbecoming a member. The public’s trust in the teaching profession is eroded when members of the profession engage in inappropriate personal and sexual relationships with students.

F. PENALTY SUBMISSIONS

30The parties agreed to a Joint Submission on Penalty (Exhibit 3) which was presented to the Panel on September 20, 2021. The Joint Submission on Penalty provided for a revocation and a reprimand. Both parties agreed that the Panel should order the penalties set out in the joint submission, but for different reasons.

31College Counsel submitted that, having made a finding of sexual abuse, the Panel is mandated to revoke and reprimand the Member pursuant to section 30.2 of the Act. She submitted that, although the sexual abuse of Student 1 occurred before the mandatory provision came into force, it nevertheless applied retrospectively pursuant to the transitional provision at section 63.2 of the Act because the Committee has not previously made a subsection 30(4) order in the matter.

32Member’s Counsel, on the other hand, submitted that the Panel should accept the Joint Submission on Penalty as the penalty is reasonable and the test for rejecting a joint submission on penalty is very stringent. Despite submitting that the Member was taking no position in relation to the application of the transitional provision at section 63.2 of the Act, Member’s Counsel stated that the Member does not accept that the transitional provision specifically applies in the circumstances of this case.

G. PENALTY Decision

33In an oral decision rendered on September 20, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member;
The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

H. REASONS FOR PENALTY DECISION

34Having considered the parties’ penalty submissions, the Panel finds that section 30.2 of the Act applies to its findings by virtue of section 63.2 of the Act. Although the mandatory penalty provision at section 30.2 of the Act was not in force at the time of the Member’s sexual abuse of Student 1 (i.e., during the 2013-2014 academic year), 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.

35The Member’s professional misconduct consisted of or included the sexual abuse of a student, 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 it has no discretion in this regard. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but finds it reasonable not to make these additional orders in light of the Member’s plea of no contest and joint submission on penalty.

36The Panel denounces the Member’s misconduct in the strongest terms.

Date: November 23, 2021

Hanno Weinberger, OCT

Chair, Discipline Panel