DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
David Flitton, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
DAVID FLITTON (REGISTRATION #190997)
PANEL: Sara Nouini, OCT, Chair John Cammarata Richard Filion
HEARD: December 3, 2020 and March 8, 2021
Jean-François Schaan, for the Ontario College of Teachers
Jerry Raso, for David Flitton
Erica Richler, 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 December 3, 2020 and March 8, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2David Flitton (the “Member”) did not attend the hearing but had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION ban
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated March 1, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that David Flitton is guilty of professional misconduct as defined in the Act in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(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 an act or 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. 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:
David Flitton is 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.
At all material times, the Member was employed by the Waterloo Catholic District School Board (the “Board”) as an itinerant Music and Kindergarten to Grade 3 teacher.
The Member has been employed by the Board since September 1, 1988. Prior to the events set out below, the Member had no disciplinary history with the Board.
Prior to the events set out below, the Member had no disciplinary history with the College.
Between December 1, 2016 and January 18, 2017, the Member posted or shared inappropriate content regarding Muslims and/or Islam and/or refugees on his personal Facebook page. The Member identified himself as an employee of the Board on his personal Facebook page. The Member’s posts included:
(a) “sharing” an image featuring the phrase: “Do you know that every country that […] Muslim refugees now regrets it? The world is in chaos because of Islam”.
(b) “sharing” an image featuring the phrase: “I refuse to bend, twist or change to make Muslims feel comfortable in MY […] our laws or leave! THIS IS MY COUNTRY!”
(c) “posting” the following comment: “This person finally realized that Islam is a lie…check out his reaction.” The comment links to an article and video entitled “Muslim goes on rampage after discovering Islam is a lie.”
(d) “sharing” a post stating: “Let them eat #YELLOWSNOW!!”, linked to an article entitled “Canada's Syrian refugees twelve months later: Troubling trend developing”.
(e) “posting” the following comments: “A Libtard dissected live on TV!!” and “[…] worst Libtard crap I have ever watched […]”.
On or about December 6, 2016, the Member “shared” a photo posted by the “This is Christian Europe” Facebook page. That Facebook page features comments of a xenophobic and/or racist nature.
Attached hereto and marked as Appendix “B” is a copy of the social media posts referred to in paragraphs 5 and 6, above.
On or about January 18, 2017, Board staff met with the Member to discuss concerns about the content appearing on the Member’s Facebook page. The Member indicated that he believed his Facebook page was private and offered to take down his Facebook page.
The Board determined that the Member’s Facebook page identified him as an employee of the Board and contained “[…] content that is derogatory and offensive to Muslims and refugees, uses the term ‘libtard’ that is offensive to students with special needs and links to a Facebook page that is a forum for racist and bigoted commentary and discussion.” On January 18, 2017, the Board issued a recorded verbal warning to the Member. The Member was also directed to remove all derogatory and offensive content from his Facebook page and to refrain from posting content of a similar nature in the future.
Attached hereto and marked as Appendix “C” is a copy of the Board’s Employee Work Incident Report setting out the recorded verbal warning issued to the Member, dated January 18, 2017.
Attached hereto and marked as Appendix “D” is a copy of the Ontario College of Teachers Professional Advisory entitled Use of Electronic Communication and Social Media, which was issued on February 23, 2011 and remained in effect until September 26, 2017.
If the Member were to testify, he would state that he has since voluntarily completed the Human Right 101 online course offered by the Ontario Human Rights Commission. The Member would also express that he recognizes the inappropriateness of his actions and is deeply sorry for offending anyone through his actions.
GUILTY PLEA
By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-12 above (the “Admitted Facts”).
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(5), 1(15), 1(18), and 1(19).
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 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 in this document 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.
- In light of the Admitted Facts and the Member’s 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 8, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
E. REASONS FOR DECISION
7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 12 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. The Admitted Facts demonstrate that the Member posted or shared offensive content of a racist or xenophobic nature on his personal Facebook page.
8The Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. In particular, the Member breached the standard of practice of “Commitment to Students and Student Learning” and the ethical standards of “Care” and “Respect”. The practice standard of “Commitment to Students and Student Learning” provides that members should treat students equitably and with respect and should be sensitive to factors that influence individual learning. The ethical standard of “Care” includes the notion of “acceptance” as one of its central elements. The ethical standard of “Respect” requires members to model respect for cultural values, social justice, freedom and democracy, among other values. By using offensive terms like “Libtard” on his personal Facebook page, the Member showed a lack of respect and sensitivity to students with special needs. Similarly, by sharing or posting several offensive comments of a racist or xenophobic nature on his personal Facebook page, the Member failed to model respect for cultural values or to serve as a positive influence for students. Given the unique position of trust and authority that members of the teaching profession hold, they cannot propagate offensive and discriminatory comments on social media. In doing so, the Member demonstrated a profound lack of understanding of the standards of the profession.
9The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that teachers are required to inculcate by precept and example respect for religion and the highest regard for many virtues including humanity and benevolence. Essentially, teachers must serve as positive role models and upstanding members of their communities. There is no place in the teaching profession for members to promote intolerance on social media. The conduct of teachers, both inside and outside of the classroom (including on social media) must be reflective of the tolerance and inclusiveness expected in Ontario’s schools. By posting or sharing racist and culturally insensitive content on his personal Facebook page, the Member acted contrary to his duties as a teacher.
10The Panel finds that the Member breached subsection 1(18) of Ontario Regulation 437/97. It was disgraceful, dishonourable, or unprofessional for the Member to spread offensive content on social media. Teachers hold a unique position of trust in society and, by virtue of their important role in their communities, they must conduct themselves appropriately both inside and outside of the classroom.
11The Panel finds that the Member’s offensive 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 spread disrespectful and derogatory content on social media.
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 March 8, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to receive a reprimand, in writing, and the fact of the reprimand will be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to impose the following terms, conditions or limitations on the Member's Certificate of Qualification and Registration, and the fact of such terms, conditions or limitations are to be recorded on the Register:
(a) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction covering professional boundaries/appropriate use of social media and cultural sensitivity.1 The course shall be pre-approved by the Registrar and be subject to the following conditions:
(i) the Member will provide to a course practitioner 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; and
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will 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 (a) above, the Member shall provide to the Registrar a written certificate 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. Sadaka, 2019 ONOCT 60, Ontario College of Teachers v. MacDonald, 2019 ONOCT 104 and Ontario College of Teachers v. Clark (4 January 2021).
14The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is the fact that the racially and culturally insensitive posts on the Member’s personal Facebook page were visible for around a month. In terms of mitigating factors, the Member removed the offensive content as soon as it was brought to his attention and admitted his misconduct which saved the time and expense of a contested hearing. The Member has also expressed remorse and has not been the subject of prior Board or College discipline. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
15The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. Members of the teaching profession hold a unique position of trust and authority, and they are expected to serve as positive role models. By posting or sharing offensive content on his Facebook page and identifying himself as an employee of the Board on his personal Facebook page, the Member tarnished the reputation of his Board and 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.
16The Panel notes that the Member has voluntarily completed the Human Right 101 online course offered by the Ontario Human Rights Commission. The Panel finds that a course of instruction regarding professional boundaries and appropriate use of social media and cultural sensitivity will further assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future communications on social media.
17The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: March 13, 2021
Sara Nouini, OCT Chair, Discipline Panel
John Cammarata Member, Discipline Panel
Richard Filion Member, Discipline Panel