Ontario College of Teachers v. Elliott, 2021 ONOCT 23

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Elliott 2021 ONOCT 23

Date: 2021-03-15

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 Patrick George Elliott, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PATRICK GEORGE ELLIOTT (REGISTRATION #193581)

PANEL: Irene Dembek, OCT, Chair Josée Landriault, OCT Wanda Percival

HEARD: March 9, 2021

Christine Lonsdale, for the Ontario College of Teachers Elizabeth Winter for Patrick George Elliott Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on March 9, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Patrick George Elliott (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

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 January 20, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Patrick George Elliott is guilty of professional misconduct as defined in the Act in that:

(a) he failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(b) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(c) he falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);

(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 contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(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. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Patrick George Elliott was 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 respecting the Member.

2. At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”) as a Vice-Principal.

3. During the 2013-2014 academic year, the Member was a Vice-Principal at [XXX] School (the “School”) in Hamilton, Ontario.

4. During the 2015-2016 academic year, the Member was a Vice-Principal for the [XXX] Program within the Board.

Inappropriate Conduct Amongst Colleagues

5. The Member in his capacity as Vice-Principal at the School engaged in inappropriate conduct by participating in banter amongst colleagues at the School. The Member spoke sharply, questioned and made inappropriate comments towards colleagues, which made them, feel uncomfortable.

Board Investigation

6. The Member was disciplined by the Board and was given a one-day suspension without pay in relation to his conduct referred to paragraph 5 above. Attached hereto and marked as Exhibit “B” is a copy of the discipline letter dated April 3, 2014.

Reimbursement of Expenses

7. During the 2015-2016 academic year, the Member was a Vice-Principal for the [XXX] Program within the Board.

8. In and around December 2014, the Member was asked by the Superintendent of Human Resources (the “Superintendent”) of the Board at the time, to record [XXX] hockey game on a Saturday. On that day, the Member travelled from Niagara Falls to Brampton and back. The Superintendent offered to reimburse his travel expenses.

9. The Superintendent said that he would reimburse the Member for his travel expenses to and from the hockey game. In or about June 2015, the Member received a cheque issued by the Board from the Superintendent in the amount of approximately $28.00 reimbursing his travel expenses. The Member did not question the Superintendent giving him a Board issued cheque for a personal expense, but accepted the cheque from the Superintendent.

Disseminating Course Teaching Materials/Answer Guides

10. On or about March 1, 2016, at the request of the Superintendent, who was employed by another school board at the time, the Member emailed Grade [XXX] course teaching materials and answer guides to the Superintendent without proper authorization and without an appropriate purpose for doing so.

Alteration of Documents and Criminal Proceedings

11. In and around July 2015, the Member participated in the alteration of a digital copy of the Superintendent’s university issued documents, which were in PDF format, at the request of the Superintendent. The Member altered an address and enrollment information on university issued documentation to help the Superintendent’s application for his [XXX] to gain citizenship in the United States.

12. The Member was charged by the police with respect to the alteration of documents. On September 24, 2018, the Member was found guilty of two counts of knowingly causing the United States Consulate to use a forged document, contrary to Section 368(1.1) of the Criminal Code (Canada). The Member was given a six month conditional sentence. Attached hereto and marked as Exhibit “C” is a copy of the Certified Court Information dated December 4, 2017. Attached hereto and marked as Exhibit “D” is a copy of the Proceedings at Trial before the Honourable Justice J.P.P. Fiorucci dated September 24, 2018. Attached hereto and marked as Exhibit “E” is a copy of the Reasons for Sentence before the Honourable Justice J.P.P. Fiorucci dated September 24, 2018.

Second Board Investigation

13. The Member’s employment was terminated by the Board on or about January 30, 2018. The termination was grieved and the Member retired from the Board. The Member is currently employed outside of the education sector.

GUILTY PLEA

14. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).

15. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(10), 1(12), 1(13), 1(14), 1(15), 1(16), 1(18), and 1(19).

16. 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 Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty 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’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;

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

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

17. In light of the Admitted Facts and circumstances and the plea of guilt, 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 Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on March 9, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(12), 1(13), 1(14), 1(15), 1(16), 1(18), and 1(19). The Panel did not find that the Admitted Facts proved, on a balance of probabilities, that the Member breached subsection 1(10) of Ontario Regulation 437/97.

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 14 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above, with the exception of subsection 1(10). The Admitted Facts demonstrate that the Member was charged and found guilty of two counts of forgery for knowingly causing the U.S. Consulate to use a forged document, contrary to section 368(1.1) of the Criminal Code of Canada. In the execution of his professional responsibilities, the Member also acted dishonestly and behaved unprofessionally toward colleagues.

8The Panel did not find that the Admitted Facts demonstrated that the Member failed to keep records as required by his professional duties, contrary to subsection 1(10) of Ontario Regulation 437/97. The parties submitted that the Member’s acceptance of the travel expense reimbursement from the Superintendent, as described at paragraphs 7-9 of the Agreed Statement of Facts and Guilty Plea supports a finding under this subsection. However, upon reviewing the Admitted Facts, the Panel found insufficient evidence to support the finding that the Member did not keep adequate records. The Panel sought and received additional submissions from the parties to clarify how the Admitted Facts support a finding under this head of misconduct.

9College Counsel referred the panel to Ontario College of Teachers v. Howard, 2014 ONOCT 48 (“Howard”) where a finding under subsection 1(10) was made. Howard involved a Principal (“Mr. Howard”) who had a professional responsibility to manage donated funds designated for social and community-assistance programs for students. Mr. Howard mismanaged funds from that account and disbursed them for unauthorized purposes. College Counsel submitted that as a Principal, Mr. Howard had a professional duty to oversee the accounting of funds to ensure that they were being used for intended purposes. Similarly, College Counsel submitted that the Member, who was a Vice-Principal, had an analogous duty to claim expenses from the Board for authorized, professional purposes only. College Counsel submitted that by inference, the improper submitting of receipts for travel expense reimbursement gives rise to a finding that the Member did not maintain accurate records, just as Mr. Howard had failed to do when he misappropriated funds for unauthorized purposes.

10While the Panel agrees that Howard and the Member’s case are factually similar, the Panel notes that in Howard, the Admitted Facts included evidence of inconsistencies in the School’s accounting records overseen by the member, which supported a finding under subsection 1(10). For instance, Mr. Howard failed to provide receipts for purchases on his Board Purchasing card (at paragraph 10), and School accounting records demonstrated payments that were not verified (see paragraph 9f). In the Member’s case, the Admitted Facts did not contain evidence about the Member’s records – or records that he was required to keep - in respect of the travel expense reimbursement that he accepted from the Board. There was no evidence of the Member submitting the receipt to the Board and requesting reimbursement. The Admitted Facts simply indicate that, “The Superintendent said that he would reimburse the Member for his travel expenses to and from the hockey game. In or about June 2015, the Member received a cheque issued by the Board from the Superintendent in the amount of approximately $28.00 reimbursing his travel expenses.” The Panel believes that this conduct does amount to professional misconduct – but not under subsection 1(10).

11The Panel finds that the Member contravened subsection 1(12) of Ontario Regulation 437/97 when the Member issued a false document to the Superintendent which he knew or ought to know contained a false statement. At the Superintendent’s request, the Member altered the Superintendent’s university-issued academic and verification of enrolment records with a false address and false enrolment dates (see Exhibit D, page 25 and page 33, Ontario Court of Justice Proceedings at Trial before the Honourable J.P.P. Fiorucci, September 24, 2018) and provided an electronic copy of the altered document to the Superintendent.

12The Member acted contrary to subsection 1(13) of Ontario Regulation 437/97 by his involvement in altering the Superintendent’s university-issued records, which were then submitted to the U. S. Consulate as genuine records in support of an application to obtain U.S. citizenship for the Superintendent’s [XXX]. Although the Member did not originally issue the Superintendent’s university records, they are clearly records that are related to the Member’s professional responsibilities. Academic records – regardless of their origin – relate to the responsibilities of a member of the teaching profession. By altering an electronic version of the Superintendent’s academic and enrolment documents, the Member falsified a record relating to his professional responsibilities.

13The Admitted Facts demonstrate that the Member failed to comply with the College’s by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97, by breaching the Ethical Standards for the Teaching Profession set out at section 32.02 of the by-laws. In particular, the ethical standard of “Integrity” refers to honesty, reliability and moral action as core values of the teaching profession. The Member failed to uphold the ethical standard of “Integrity” by forging a document, accepting a travel expense reimbursement from the Board that he knew or ought to have known was for a personal expense, and by providing to the Superintendent (then employed by a different Board) Grade [XXX] course teaching materials and answer guides without appropriate authorization or purpose. The Member also failed to uphold the ethical standard of “Respect”. Intrinsic to this ethical standard is that members “honour human dignity”, which the Member failed to demonstrate by making inappropriate comments that made colleagues feel uncomfortable.

14The Member contravened subsection 1(15) of Ontario Regulation 437/97, by failing to comply with section 264(1) of the Education Act. This section sets out the duties of a teacher and provides, at section 264(1)(c) that members of the teaching profession have a duty to model ethical behaviour and to “inculcate by precent and example […] the highest regard for truth, justice, loyalty […] and all other virtues.” By committing forgery at the request of the Superintendent and accepting a Board-issued reimbursement for personal expenses from the Superintendent, the Member failed to model honest and ethical behaviour, which was contrary to his duties as a member of the teaching profession.

15By altering the Superintendent’s university-issued documents for use in support of a U.S. citizenship application, the Member committed forgery, and was found guilty on two counts of knowingly causing the U.S. Consulate to use a forged document, contrary to section 368(1.1) of the Criminal Code of Canada. By his actions, the Member contravened a law which is relevant to the Member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16). As leaders in their school communities, it is expected that school administrators will conduct themselves honestly and with integrity. The Member failed to do so by engaging in criminal conduct.

16By the above conduct, the Member contravened subsection 1(18) of Ontario Regulation 437/97 by committing acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. A member’s conduct can be characterized as “disgraceful” when it is so serious that it casts doubt on a member’s moral fitness to discharge his professional duties. In this case, the Member has admitted that his conduct meets all three terms and that the Member’s moral and professional failings, including serious acts of dishonesty, forgery of documents and inappropriate interactions with colleagues, can be properly characterized as disgraceful, dishonourable and unprofessional.

17Finally, the Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Member’s criminal and dishonest behaviour demonstrates a serious breach of the public’s trust and undermines the reputation of the teaching profession.

F. PENALTY DECISION

18The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 9, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. 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”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 18 months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;

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 resuming or commencing a position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding boundary violation issues with colleagues and ethical standards of practice, subject to the following conditions:

(i) the Member will provide to the course practitioners approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

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

(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioners which:

(i) confirms that the Member has successfully completed the courses and reports on the progress of the Member with respect to addressing the outlined goals of the courses.

G. REASONS FOR PENALTY DECISION

19The 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 the parties: Ontario College of Teachers v. Syed, 2020 ONOCT 138, Ontario College of Teachers v. Paik, 2019 ONOCT 83 and Ontario College of Teachers v. Howard, 2014 ONOCT 48.

20The Panel considered the Member’s circumstances in comparison to the cases provided. An aggravating factor in the Member’s case is that the Member engaged in criminal conduct by altering documents that were used to make false representations to official representatives of the U.S. government. Also aggravating is that the Member, as the School’s Vice-Principal, held a position of authority with a heightened responsibility to model honestly and integrity. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, has expressed remorse and has not been the subject of College discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

21The Panel finds that the Member’s criminal and dishonest conduct as well as his boundary violations with colleagues warrant a reprimand by his peers. As a Vice-Principal, the Member ought to have recognized his heightened responsibility to demonstrate leadership and ethical conduct. Administrators are expected to act with integrity and honesty while executing their professional responsibilities and while “off-duty”. The Member was also expected to demonstrate leadership in his communication with colleagues. Even though the Member’s misconduct did not target students, the Member’s dishonesty and criminal actions tarnished the reputation of the teaching profession. 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.

22Given the nature and severity of the Member’s conduct, the Panel finds that an 18-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 lengthy 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 March 24, 2021, which is 15 days after the Panel’s Oral Decision and Order.

23Should the Member wish to return to a position that requires a Certificate of Qualification and Registration, he must first complete courses regarding boundary violation issues with colleagues and ethical standards of practice. The Panel finds that these courses will assist in the rehabilitation of the Member. This coursework will remind the Member of his obligations as a teacher and an administrator and will help him make more ethical and principled decisions that uphold the public trust in the teaching profession.

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

Date: March 15, 2021

Irene Dembek, OCT Chair, Discipline Panel

Josée Landriault, OCT Member, Discipline Panel

Wanda Percival Member, Discipline Panel