Ontario College of Teachers v. Dunford, 2021 ONOCT 148

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Dunford 2021 ONOCT 148

Date: 2021-05-18

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

Douglas Roy Dunford, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DOUGLAS ROY DUNFORD (REGISTRATION #167170)

PANEL: Stéphane Vallée, OCT, Chair Anne Resnick Linda Staudt, OCT

HEARD: May 18, 2021

Jordan Stone, for the Ontario College of Teachers Michelle Sun, for Douglas Roy Dunford 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 May 18, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Douglas Roy Dunford (the “Member”) did not attend the hearing and had legal representation attend on his behalf. 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 April 13, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Douglas Roy Dunford is guilty of professional misconduct as defined in the Act in that:

(a) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(b) 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);

(c) 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);

(d) 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. At all material times, Douglas Roy Dunford was a member of the Ontario College of Teachers. The Member’s Certificate of Qualification and Registration was suspended on April 17, 2019 for non-payment of fees. Attached hereto and marked as Appendix “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 Hamilton-Wentworth District School Board (the “Board”) as a Principal at [XXX] School (the “School”) in Stoney Creek, Ontario.

3. At all material times, Person A and Person B were female teachers employed by the Board who worked at the School.

4. From February 2018 to July 2018, the Member engaged in inappropriate conduct with Person A and conduct that he knew or ought to have known was unwelcome, when he:

(a) requested Person A’s personal email address and cellphone number;

(b) requested that he demonstrate an Aikido move on Person A and that Person A practice Aikido with him;

(c) took a photograph of Person A during a work event;

(d) sent Person A emails with the following comments:

(i) “If you find some fireworks near you and want some company, would love to see them”;

(ii) "In my first aikido fantasy... I suspect, judging by your broad smile, that you might in time be up for more... one small move at a time :) cheers and see you tomorrow...";

(iii) “here is my silly mind (perennially with me)… That we could make some [videos] this summer… the penultimate worm’s eye view of Niagara Falls, the next morning after a wine tour”;

(iv) “who is this radiant person…and yes I would very much like to be Leo to your…” in an email containing Person A’s photograph;

(e) made comments and remarks to Person A, including that:

(i) he take a field trip to [XXX] where she resided;

(ii) she held all the power in their relationship;

(iii) he wanted to get her out of the School to become more involved;

(iv) they had a special connection;

(v) she was giving him signals that she was interested;

(vi) she had an ability to be a “ball buster”;

(vii) “age is just a number”, when she stated that she was looking for a partner that was a similar age to her;

(viii) he believed he still had a twenty percent chance with her, despite Person A telling the Member that she would not enter into a romantic relationship with him;

(f) touched Person A’s arm and leg;

(g) demonstrated an Aikido move on Person A, which resulted in him grabbing and turning her elbows as part of the move. Person A consented to the Member performing the Aikido move on her, but only after she had already stated several times that she was not interested; and

(h) kissed Person A on the top of the head.

5. From in or about February 2018 to in or about July 2018, the Member engaged in inappropriate conduct with Person B and conduct which he knew or ought to have known was unwelcome, when he:

(a) made comments and remarks to Person B, including that:

(i) she would not get a job offer she applied for because of the way she dressed for the interview;

(ii) the hiring principal at the school she applied to was ugly;

(iii) he was attracted to her;

(iv) [XXX] and that he and his wife have “lived like brother and sister ever since”;

(v) he wanted his relationship with Person A to become physical;

(vi) there were feelings between him and Person A;

(vii) Person A was looking at him with love;

(viii) Person A’s body was “betraying her”;

(ix) he believed that a wet spot on Person A’s dress had resulted from a spontaneous orgasm; and

(x) he believed that Person A’s [XXX] would approve of him.

6. The Member resigned his employment with the Board effective on November 30, 2018. The Member is retired and not currently employed in a position requiring a Certificate of Qualification and Registration.

PLEA OF NO CONTEST

7. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-6 above (the “Uncontested Facts”).

8. The Member hereby acknowledges that paragraphs 4-5 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) and pleads no contest to the allegations of professional misconduct against him, being more particularly:

(a) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(b) 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);

(c) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

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

9. By this document the Member states that:

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

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

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

(d) he understands that the Discipline Committee 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 with respect to the penalty proposed does not bind the Discipline Committee; and

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

10. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, 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.

11. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on May 18, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 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 took advantage of his leadership position as a principal and harassed two teachers at his school.

8The 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. The Member’s behaviour towards Person A and Person B was a clear breach of the Standards of Practice, codified in section 32 of the College by-laws. In particular, the Panel finds that the misconduct was contrary to the Member’s requirement to promote Leadership in Learning Communities, which expects members to participate in the creation of collaborative, safe and supportive learning communities. As a principal, the Member had a particular responsibility to foster such learning communities. The Member failed to do so by making unwelcome and inappropriate comments towards his staff. Furthermore, the Member’s conduct was contrary to the Ethical Standards for the teaching profession, also codified in section 32 of the College by-laws. In particular, the Panel finds that the Member’s misconduct was contrary to the standard of Respect. The standard of Respect imparts on members the responsibility to honour human dignity, emotional wellness, and cognitive development in their professional practice. The Member failed to comply with the standard of Respect by making inappropriate and unwelcome comments to Person A, including requesting her personal contact information and calling her a “ball buster”. The Member further showed complete disrespect towards Person A’s bodily autonomy by touching her on the leg and kissing her on the head.

9The 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. Members have a duty to assist in developing co-operation and co-ordination of effort among the members of the staff of the school. The Member’s harassment of Person A and Person B was contrary to this duty to develop co-operation among the staff, which was particularly important given the Member’s position as a principal. Overall, the Member’s actions were contrary to his obligations as a member of the profession.

10The Member’s misconduct is disgraceful, dishonourable and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to act professionally by maintaining a safe and collegial work environment. The Member failed to do so by his misconduct. The Member acted disgracefully, dishonourably and unprofessionally by making numerous inappropriate comments to Person A and Person B. This was completely unacceptable behaviour toward his staff and placed Person A and Person B in a very difficult and uncomfortable position.

11Similarly, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when principals take advantage of their leadership position, harass their staff and model inappropriate behaviour in the school community.

F. PENALTY Decision

12The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 18, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of four months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) prior to accepting any position in Ontario that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding professional boundaries, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

13The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Fair, 2016 ONOCT 21, Ontario College of Teachers v. Béarez, 2019 ONOCT 17, and Ontario College of Teachers v. Fazl, 2019 ONOCT 2.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The most important aggravating factor in this case is that the Member was in a leadership position at the School, and that he took advantage of his position to harass members of his staff. Additionally, the misconduct in this case was repeated and occurred over a period of several months. In terms of mitigating factors, the Member did not contest the misconduct, saving the time and expense of a contested hearing. Further, the Member has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

15The Panel finds that the Member’s repeated inappropriate conduct towards his staff warrants a reprimand by his peers. Principals are expected to maintain a strictly professional relationship with their teachers, which the Member failed to do by his misconduct. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

16Given the nature and severity of the Member’s conduct, the Panel finds that a four-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on June 2, 2021, which is 15 days after the Panel’s Oral Decision and Order.

17The Panel finds that the course of instruction regarding professional boundaries is intended to assist in the rehabilitation of the Member. Should the Member return to the profession, the coursework will remind him of his obligations and will help him to make better decisions in any future interactions with colleagues and staff.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: May 18, 2021

Stéphane Vallée, OCT Chair, Discipline Panel

Anne Resnick Member, Discipline Panel

Linda Staudt, OCT Member, Discipline Panel