DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Hacker 2021 ONOCT 44

Date: 2021-05-11

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

Edmund Brian Hacker, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

EDMUND BRIAN HACKER (REGISTRATION #519663)

PANEL: Irene Dembek, OCT, Chair

Andrew Glenny

Wanda Percival

HEARD: May 7, 2021

Emilie Bruneau and Shane D’Souza, for the Ontario College of Teachers

Erin Epp, for Edmund Brian Hacker

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 7, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Edmund Brian Hacker (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 May 23, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Edmund Brian Hacker 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);¹

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

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

(d) 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;²

(e) he failed to comply with the Act or the regulations or 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

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Edmund Brian Hacker 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.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”).

3. During the 2013-2014 academic school year, the Member was a teacher at [XXX] [XXX] in Scarborough, Ontario. At the material times, Student 1 was a Grade [XXX] male student in his Period [XXX] class (“Student 1”).

4. During the 2016-2017 academic school year, the Member was a teacher at [XXX] [XXX] in Etobicoke, Ontario.

2013-2014 Academic School Year

5. In or around May 2014, while the Member was teaching at [XXX], the Member made inappropriate comments to students in his Grade [XXX] class.

6. In or around May 15, 2014, at the end of the class, Student 1 was playing with soap at a handwashing station and said that the soap looked like cum. The Member’s reply to Student 1 was “oh, the stuff you swallow”, or words to that effect. The comments were overheard by several students in the class. The Member intended his comment to be a joke and in hindsight, recognizes that it was inappropriate.

7. In or around May 16, 2014, the Member told students in the class “you guys are good, but [Student 1] is bringing you all down. If [Student 1] comes to the door don’t let him in. Has [Student 1] always been acting like an idiot?”, or words to that effect. The comments were overheard by several students in the class.

8. The Member did not report the above events either to the school administration or the parents of Student 1.

2016-2017 Academic School Year

9. In the fall of 2016, without [XXX] or the Board’s authorization, the Member took car mats belonging to [XXX] and installed them onto his personal vehicle as mud flaps.

10. In the fall of 2016, without [XXX] or the Board’s authorization, the Member deliberately damaged the door of a locked storage in an [XXX] at [XXX] for the purpose of gaining access. The Member later installed a pad lock on the damaged door.

Board Discipline

11. Following the Member’s reported conduct in the 2013-2014 academic year, the Board commenced an investigation into the Member’s conduct. On or around June 23, 2014, the Board concluded that the Member had made inappropriate and offensive comments to a student which were overheard by others in the class. The Member was issued a letter of discipline and suspended for five (5) days without pay. The suspension was later reduced from five (5) to three (3) days. Attached hereto and marked as Exhibit “B” is a copy of the letter of discipline dated June 23, 2014. Attached hereto and marked as Exhibit “C” is a copy of the letter resolving the grievance dated December 18, 2014.

12. Following the Member’s reported conduct in the 2016-2017 academic year, the Board commenced an investigation into the Member’s conduct. On or around January 27, 2017, the Board concluded that, without authorization, the Member had taken property belonging to the school and deliberately damaged the school’s door. The Member was issued a letter of discipline and suspended for three (3) days without pay. Attached hereto and marked as Exhibit “D” is a copy of the letter of discipline dated January 27, 2017.

PLEA OF NO CONTEST

13. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

14. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

15. In the circumstances of this case, the parties agree that the event described in paragraph 6, above, constitutes professional misconduct, but does not constitute sexual abuse as defined in section 1(1) of the Ontario College of Teachers Act, 1996, S.O. 1996, chapter 12 (the “Act”), and does not attract the mandatory penalties as provided in sections 30.2 and 30.3 of the Act.

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 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 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 between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

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

17. 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.

18. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.3) of Ontario Regulation 437/97 and/or that he engaged in sexual abuse of a student as defined in section 1 of the Act, be withdrawn. College Counsel sought the Panel’s permission to withdraw the subsection 1(5) allegation because proceeding under both subsections 1(5) and 1(14) would be duplicative. College Counsel sought to withdraw the sexual abuse allegation under subsection 1(7.3) and section 1 as the evidence does not support a finding under this head of misconduct. The Panel granted these requests.

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 May 7, 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).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 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.

9The Panel finds that the Member verbally abused students, contrary to subsection 1(7) of Ontario Regulation 437/97, by responding to Student 1’s comment with a vulgar joke, which was heard by other students, and by making disparaging comments about Student 1 to other students in class. Making vulgar jokes and disparaging comments about a student in class, including calling him an “idiot”, is offensive, inappropriate and amounts to verbal abuse by the Member.

10The Panel finds that the Member psychologically or emotionally abused Student 1, contrary to subsection 1(7.2) of Ontario Regulation 437/97. It is unacceptable for teachers to make degrading jokes or to call students by demeaning names, as described above. Reasonably, remarks of this nature by a trusted authority figure would have a negative psychological or emotional impact on a student. The Panel also gives weight to the fact that the Member did not contest that his conduct amounts to psychological or emotional abuse of a student.

11The 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’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. The Panel finds that the Member breached the ethical standard of “Respect”, which expects members to honour human dignity, emotional wellness and cognitive development. It falls below the standard of respect to make vulgar jokes in the classroom and to call students demeaning names. Furthermore, the Member’s unauthorized removal and personal use of Board property falls below the Ethical Standard of “Integrity”, which expects members to embody honesty, reliability and moral action in their professional commitments and responsibilities. The Panel further notes that the Member did not contest that his behaviour fell below the standards of the profession.

12The 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 of the teaching profession hold a unique position of trust and authority. They are required to encourage students in the pursuit of learning and to act as positive role models who conduct themselves morally and with integrity, as described at subsections 264(1)(b) and (c) of the Education Act. The Member’s belittling and demeaning behaviour toward Student 1 discouraged learning and set a negative example for other students who heard the Member’s remarks.

13The Panel finds that the Member’s conduct is disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to address students in a professional manner and to exercise good judgment in their interactions with students. The Member failed to do so by his inappropriate remarks. Furthermore, the Member demonstrated a lack of integrity and respect for his employer’s property when he took items belonging to the Board for personal use and intentionally damaged a storage locker door at the School to gain access to it. The Panel accepts College Counsel’s submission that the Member’s conduct can be characterized by all three terms. Furthermore, the Member did not contest that his conduct was disgraceful, dishonourable or unprofessional.

14Finally, 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 diminished when teachers verbally and psychologically or emotionally abuse students and when they misuse Board property.

F. PENALTY Decision

15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 7, 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 via 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 ten (10) months commencing on the 15^th 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) within ninety (90) days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

(i) the Member will provide to a 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 (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;

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

(i) 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

16The 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. Mackenzie, 2019 ONOCT 22 and Ontario College of Teachers v. Shaikh, 2017 ONOCT 35.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel took note of the aggravating factor that the Member had previously been disciplined by the Board in 2013 and by the College in 2016 for similar misconduct involving the misappropriation of Board property (Exhibit 4). It is also an aggravating factor that the Member’s misconduct took place at two different schools, over the course of two separate academic years, and involved two different types of professional misconduct (abusive comments to students and misuse of Board property). The Member’s misconduct was not an isolated incident – it formed part of a concerning pattern of behaviour. In terms of mitigating factors, the Member did not contest his misconduct, saving students from having to testify and the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s conduct warrants a reprimand by his peers. Members are expected to support the well-being and learning of students and to refrain from making inappropriate jokes or comments to students or about them. Furthermore, they are expected to act with integrity when it comes to the use of Board property. 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.

19Given the repeated nature and severity of the Member’s misconduct, the Panel finds that a ten-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 May 22, 2021, which is 15 days after the Panel’s Oral Decision and Order.

20The Panel finds that the course of instruction regarding professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him make appropriate decisions in any future interactions with students and with respect to Board property.

21The 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 College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.