DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gacich 2021 ONOCT 16

Date: 2021-03-04

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

Sean Gacich, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

SEAN GACICH (REGISTRATION #257000)

PANEL: Rebecca Forte, OCT, Chair John Cammarata Shanlee Linton, OCT

HEARD: January 11, 2021 and March 1, 2021

Jordan Stone, for the Ontario College of Teachers Angela Zhu, for Sean Gacich Erica Richler, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 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 January 11, 2021 and March 1, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Two Notices of Hearing dated April 13, 2020 (Exhibit 1) and April 17, 2020 (Exhibit 2) were served on the Member, specifying the allegations and requesting his presence on a date to be determined for the hearing. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing.

3Sean Gacich (the “Member”) attended the hearing and 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

4The 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.

5Additionally, 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, Student 2, Student 3 and Student 4, who were 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, Student 2, Student 3 and Student 4.

B. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated April 13, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Sean Gacich is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(c) he engaged in sexual misconduct as defined in section 1 of the Act;

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

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

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

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

7The allegations against the Member in the Notice of Hearing dated April 17, 2020 (Exhibit 2) are as follows:

IT IS ALLEGED that Sean Gacich is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(c) 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;¹

(d) he engaged in sexual misconduct as defined in section 1 of the Act;

(e) 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);

(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

8College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

1. At all material times, Sean Gacich was a member of the Ontario College of Teachers. 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 Toronto District School Board (the “Board”) as a teacher at [XXX] (the “School”) in Toronto, Ontario.

3. On January 11, 2019, the Member’s employment with the Board was terminated.

Notice of Hearing dated April 13, 2020

4. On multiple instances between 2012 and 2018, the Member:

(a) Failed to respect the personal space of his female students by standing, sitting, or leaning too close to them; and

(b) Looked at female students in a manner that made them feel uncomfortable.

5. In the 2011/2012 academic year, the Member provided an assignment to the students in his Grade [XXX] class that required students to give a presentation on a non-traditional career. Students were encouraged to dress up as someone in the career they were presenting on. As part of the assignment, the Member included a list of examples of non-traditional careers for students to choose from, which included dominatrix and exotic dancer as choices.

6. In the 2017/2018 academic year, the Member was discussing a book with the students in his Grade [XXX] class that involved a scene where two parents shower together. While discussing this scene, the Member asked his students whether their parents showered together, how they felt about their parents showering together, and whether they had ever showered with someone else.

7. In September 2017, the Member was part of a group of teachers and volunteers supervising students from the School on an overnight trip at a camp. During this trip, the Member touched several students on their arms with a freezie and said “Brrr”.

Notice of Hearing dated April 17, 2020

2015/2016 Academic Year

8. In the academic year 2015/2016, Student 1 was a Grade [XXX] female student at the School.

9. In the academic year 2015/2016, Student 1’s school photograph was delivered to the Member’s classroom in error. When the Member saw Student 1 in the hallway, he told her in French that she should pick up the photograph and that “c’est une belle photo”, which translates to “it’s a beautiful photo”.

2016/2017 Academic Year

10. In the academic year 2016/2017, Student 2 was a Grade [XXX] female student at the School and Student 3 was a Grade [XXX] female student at the School.

11. In the academic year 2016/2017, while doing attendance, the Member said to Student 2 in French, “Oh, [Student 2], très jolie”, which translates to “Oh, [Student 2], very pretty.”

12. In the academic year 2016/2017, the Member attended a [XXX] competition with several female students. On that day, Student 3 was wearing Lululemon leggings where the Lululemon logo was on her hip/buttocks. The Member said “Ohh Lululemon” to Student 3.

13. In the academic year 2016/2017, the Member and a female teacher candidate took a group of students on a field trip to [XXX] in Toronto, Ontario. Several of the students who participated in the field trip were female. During the field trip, the group walked past a sex shop where vibrators were displayed in the window and the Member gestured towards the window and said, “Look, it’s for you”.

14. On April 18, 2016, the Member accessed images of art depicting naked bodies from a Board computer while at the School during work hours.

2017/2018 Academic Year

15. In the academic year 2017/2018, Student 4 was a Grade [XXX] female student at the School.

16. In the academic year 2017/2018, the Member walked by Student 4 in the hallway and said to her in French, “C’est une belle coupe de cheveux. Ils tombent bien”, which translates to “It’s a beautiful haircut. It falls nicely.”

PLEA OF NO CONTEST

17. 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 1-16 above (the “Uncontested Facts”).

18. The Member hereby acknowledges that paragraphs 4-7, 9, 11-14, and 16 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against him, being more particularly:

(a) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(c) he engaged in sexual misconduct as defined in section 1 of the Act;

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

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

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

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

19. By this document the Member states that:

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

(b) he understands that 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.

20. 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.

21. 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

9Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing dated April 17, 2020, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97 and that he engaged in sexual abuse of a student or students as defined in section 1 of the Act, be withdrawn. The definition of sexual abuse includes “behaviour or remarks of a sexual nature by the member towards the student”. College Counsel submitted that there was insufficient evidence regarding to whom the comment on the field trip was made. College Counsel also submitted that the other comments made toward students were inappropriate, but not sexual. College Counsel noted that the definition of “sexual misconduct” contemplates that certain behaviour or remarks of a sexual nature may not be sexual abuse (since the definition states ““sexual misconduct” means inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student”). In light of the submissions made by College Counsel, the consent of the Member to the withdrawal, and the plea of no contest to the allegation of “sexual misconduct” the Panel determined that it was appropriate to grant the request to withdraw the “sexual abuse” allegation.

10Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on March 1, 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(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.

E. REASONS FOR DECISION

11The Member did not contest the facts and exhibits referred to in paragraphs 1 to 16 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, between 2012 and 2018, the Member engaged in a concerning pattern of inappropriate conduct, which included making inappropriate comments to female students and engaging in sexual misconduct.

12The Panel finds that the Member verbally abused students by making inappropriate comments to Student 1, Student 2, Student 3 and Student 4, who were female students. Specifically, the Member told Student 1 that her school photograph was beautiful. He told Student 2 “oh, [Student 2], very pretty.” In addition, the Member said “Ohh Lululemon” to Student 3 who was wearing Lululemon leggings where the logo was on her hip/buttocks. Similarly, while walking by Student 4, the Member told her “It’s a beautiful haircut. It falls nicely.” The Member’s comments about the physical appearance of several female students were inappropriate and offensive given the power dynamic between teachers and students, and they amount to verbal abuse by the Member.

13The Member’s conduct constitutes psychological or emotional abuse of students contrary to subsection 1(7.2) of Ontario Regulation 437/97. On multiple instances between 2012 and 2018, the Member failed to respect the personal space of his female students by standing, sitting, or leaning too close to them, and he looked at female students in a manner that made them feel uncomfortable. Teachers hold a unique position of trust and authority, and it is emotionally abusive for them to repeatedly fail to maintain appropriate boundaries with students in a way that makes the students feel uncomfortable at school. The Member’s conduct therefore amounts to psychological or emotional abuse of students.

14The Panel finds that the Member’s conduct constitutes sexual misconduct as defined in Section 1 of the Act. “Sexual misconduct” is defined in the Act as:

inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,

(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks,

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.

The Member exposed several students to behaviour or remarks of a sexual nature. The Member asked his students in class whether their parents showered together, how they felt about their parents showering together, and whether they had ever showered with someone else. Furthermore, during a field trip with a group of students which included several female students, the Member gestured towards the window of a sex shop where vibrators were displayed and said, “Look, it’s for you.” The Panel finds that a reasonable person would expect the behaviour or remarks of the Member to create a negative environment at a school or be detrimental to the physical or mental well-being of the students who were exposed to such behaviour. It is not appropriate for teachers to engage in behaviour or make remarks of a sexual nature in front of students and by doing so, the Member engaged in sexual misconduct. The Member’s conduct does not rise to the level of sexual abuse because there was insufficient evidence to prove to whom this comment was made, and sexually abusive conduct is generally directed at a particular student or students.

15The Panel finds that the Member failed to comply with the Act, regulations, or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the professional and ethical standards for the teaching profession. The Panel finds that the Member breached the standard of “Professional Practice”, which requires members to apply professional knowledge and experience to promote student learning and to use appropriate pedagogy and resources in their teaching. The Member failed to do so, when as part of an assignment given to students in which they were asked to give a presentation on non-traditional career choices (and students were encouraged to dress in character), he included “dominatrix” and “exotic dancer” among the list of examples or choices provided. Furthermore, the Member breached the ethical standards of “care” and “respect”. Members are expected to demonstrate their commitment to students’ well-being (“Care”) and respect for students in their professional practice (“Respect”). It falls below the standards of the profession to engage in inappropriate conduct such as looking at female students in a manner that makes them feel uncomfortable, making inappropriate comments to female students and exposing students to behaviour or remarks of a sexual nature.

16The Panel finds that the Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. Among other things, teachers are required to act as positive role models and encourage students in the pursuit of learning. The Member’s conduct described above was at odds with his duties as a teacher. By exposing students to comments of a sexual nature and by making students feel uncomfortable at school because of his behaviour, the Member failed to serve as a positive role model and to encourage students in the pursuit of learning. He created a negative school experience for several students.

17The Panel finds that the Member breached subsection 1(18) of Ontario Regulation 437/97 by engaging in conduct that was disgraceful, dishonourable or unprofessional. The Member verbally and psychologically or emotionally abused several female students, and he exposed students to comments of a sexual nature, which is completely inappropriate for a teacher who holds a position of trust and authority. Furthermore, the Member demonstrated a lack of professional judgment by accessing images of art depicting naked bodies from a Board computer while at school during work hours. Members of the teaching profession are expected to safeguard students’ well-being and to always act professionally. The Member failed to meet these expectations.

18The Panel finds that the Member’s inappropriate conduct as described above, 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 members of the profession engage in such a concerning pattern of inappropriate behaviour.

F. UNDERTAKING, AGREEMENT AND ACKNOWLEDGMENT

19On November 5, 2020, the Member entered into an Undertaking, Agreement and Acknowledgment with the College (Schedule “A” to the Joint Submission on Penalty) in which he agreed to the following terms and conditions:

1. I hereby resign as a member of the College and surrender irrevocably my Certificate of Qualification and Registration effective immediately.

2. I undertake that I will never seek reinstatement of my Certificate of Qualification and Registration.

3. I undertake that following my resignation, I will never teach again in any public or private school in Ontario or work in any position that requires membership in the College.

4. I acknowledge that I will not be entitled in the future to seek membership in the College after having resigned permanently from membership in the College and having irrevocably surrendered my Certificate of Qualification and Registration pursuant to this Undertaking, Agreement and Acknowledgement.

5. I acknowledge that my status on the Public Register of the College will be “Resigned-Cancelled” and the notation will read as follows:

“On March 1, 2021, the Member was found guilty of professional misconduct. Reprimand. Publication in Professionally Speaking. On March 1, 2021, before the Discipline Committee at the College, the Member resigned his membership with the College and undertook to never teach again in any public or private school in Ontario or work in any position that requires membership in the College. The Member undertook never to seek reinstatement of his Certificate of Qualification and Registration.”

6. I acknowledge that the College is authorized to provide information regarding this Undertaking, Agreement and Acknowledgement in response to any inquiries it receives from any authority that regulates the practice of teaching in any other jurisdiction.

7. I acknowledge and understand that the decision and reasons of the Discipline Committee in this matter will be available on the College’s website.

8. I understand and agree that this Undertaking, Agreement and Acknowledgement is legally binding on me and that the College may take any legal action against me to enforce it that the College deems appropriate.

9. I fully understand the terms of this Undertaking, Agreement and Acknowledgement.

10. I confirm that I am entering into this Undertaking, Agreement and Acknowledgement voluntarily and without compulsion or duress, and that I have been advised by the College of my right to obtain independent legal advice on this Undertaking, Agreement and Acknowledgement and its contents. I have had ample opportunity to consult with legal counsel regarding the terms of this Undertaking, Agreement and Acknowledgement and any other related legal issues.

G. penalty decision

20The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on March 1, 2021, the Panel accepted the Joint Submission on Penalty, given the Member’s undertaking, and made the following order:

1. The Member is directed to receive a reprimand, in writing, and that 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

21The Panel accepts the penalty jointly proposed by the parties and notes that the Member has resigned as a member of the College and undertaken to never seek reinstatement and to never again work in any teaching position in a public or private school in Ontario or in any other position that would require a Certificate of Qualification and Registration. 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, given the Member’s Undertaking, Agreement and Acknowledgment, 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 the parties: Ontario College of Teachers v. Fisher, 2018 ONOCT 11, Ontario College of Teachers v. Duncker, 2020 ONOCT 137, Ontario College of Teachers v. Grant, 2015 ONOCT 33, Ontario College of Teachers v. Harkes, 2015 ONOCT 37, Ontario College of Teachers v. Grima, 2020 ONOCT 183, Ontario College of Teachers v. Morris, 2006 ONOCT 33 and Ontario College of Teachers v. Lapointe, 2014 ONOCT 56.

22The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the repeated nature of the inappropriate conduct, the prolonged duration of the misconduct and the fact that the misconduct was mainly directed at female students. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing and 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, in conjunction with the Member’s Undertaking, Agreement and Acknowledgment, is reasonable.

23The Panel finds that the reprimand, together with the terms set out in the Member’s Undertaking, Agreement and Acknowledgment, will serve as a specific deterrent to the Member and make clear to other members that the profession will not tolerate the kind of misconduct exhibited by the Member. In view of the seriousness and repeated nature of the Member’s misconduct, the Panel finds it reasonable that the Member will no longer be permitted to teach or seek to return to the teaching profession in Ontario. Teachers must demonstrate a commitment to student well-being and learning. The Member engaged in a highly concerning pattern of inappropriate conduct that included sexual misconduct. The reprimand will allow the Panel to directly address its concerns with the Member. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.