DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Cockburn 2021 ONOCT 45

Date: 2021-05-17

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 Michael Cockburn, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID MICHAEL COCKBURN (REGISTRATION #435683)

PANEL: Jonathan Rose, Chair Azeem Khan Nicola Powadiuk, OCT

HEARD: May 17, 2021

Eli Mogil, for the Ontario College of Teachers David Michael Cockburn, self-represented 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 May 17, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2David Michael Cockburn (the “Member”) attended the hearing but did not have 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 February 24, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that David Michael Cockburn 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. David Michael Cockburn 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 respecting the Member;

2. At all material times, the Member was employed by the District School Board of Niagara (the “Board”) as a teacher at [XXX] School (the “School”) in St. Catharines, Ontario.

3. On the morning of June 4, 2018, the Member was in the [XXX] office to pick up papers from the printer.

4. After the Member left the [XXX] office, $50.00 went missing from a colleague’s backpack. The Member took the $50.00 from the backpack without permission.

Board Investigation

5. Following its investigation, the Board concluded that the Member admitted to being in the [XXX] office without authorization and was untruthful with respect to the missing funds. Attached hereto and marked as Exhibit “B” is a copy of the discipline letter dated June 29, 2018. The discipline was grieved and through a Minutes of Settlement, the Member’s discipline was reduced to a one day suspension without pay.

Prior History with the Board

6. In 2006, the Member received a Letter of Record with respect to money missing from [XXX] offices. Attached hereto and marked as Exhibit “C” is a copy of the Letter of Record dated June 6, 2006.

7. In 2011, the Member received another Letter of Counsel/Expectations regarding 1) taking food from the cafeteria without paying for it, 2) an award for a student, which included a cash award, was taken home by the Member and returned after March Break 3) looking in student lockers. Attached hereto and marked as Exhibit “D” is a copy of the Letter Counsel/Expectations dated June 20, 2011.

Current Status

8. The Member is currently teaching at the School.

PLEA OF NO CONTEST

9. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 to 8 above (the “Uncontested Facts”).

10. 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(14), 1(15), 1(18), and 1(19).

11. 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/herself [sic] 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 without the advice of legal counsel.

12. 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.

13. 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

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 17, 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 8 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.

8The Uncontested Facts demonstrate that the Member failed to comply with the Act, regulations or by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 32 of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. Among other things, members are expected to promote trust and confidence in the teaching profession. The ethical standard of “trust” includes relationships with colleagues. Members are to “embody fairness, openness and honesty” in their interactions with others. Intrinsic to the ethical standard of “integrity” are “honesty, reliability and moral action”. Taking money from a colleague is a serious breach of trust and an immoral act that falls below the ethical standards expected of teachers.

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. Among other things, members are required to model integrity and moral action, as described at section 264(1)(c) of the Education Act. The Member’s taking of a colleague’s money and the fact that he was untruthful regarding his knowledge of the whereabouts of the missing funds (Exhibit B of Exhibit 2) demonstrates immoral conduct that is at odds with the Member’s duties as a teacher.

10The 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 act ethically and honestly. By taking money from a colleague, the Member brought shame to himself and to the profession. His dishonest behaviour demonstrates moral and professional failings that can be properly characterized as disgraceful, dishonourable and unprofessional.

11Finally, the Member’s conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97, in that it undermines the reputation of the teaching profession and the trust that students and the public place in members.

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 17, 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 impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 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 ethics, subject to the following conditions:

(i) the Member will provide to 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, Reasons for Decision and Order of the Discipline Committee;

(ii) following 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 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 which:

(i) confirms that the Member has successfully completed the course and reports 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. Timmons, 2014 ONOCT 104, Ontario College of Teachers v. Tamburrino, 2016 ONOCT 49, and Ontario College of Teachers v. Millson, 2018 ONOCT 18.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor is that, prior to the conduct at issue in this case, the Member received warnings from his employer regarding incidents involving the mishandling of money and acts of dishonesty relating to money (see Exhibits C and D of Exhibit 2). In terms of mitigating factors, the Member did not contest his misconduct which allowed the matter to proceed on consensus, saving the College the time and expense of a contested hearing. Further, the Member’s misconduct did not directly involve students. Finally, the Panel notes that the Member’s misconduct falls on the lower end of the professional misconduct spectrum given the relatively small sum of money involved. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

15The Panel finds that the Member’s dishonest conduct as described above, warrants a reprimand by his peers. Members of the teaching profession are expected to be trustworthy and to always conduct themselves in an ethical manner, including in respect of property belonging to colleagues. The Member’s misconduct has undermined the public’s confidence in the teaching profession. The reprimand, which was delivered by videoconference immediately following the hearing, allowed 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 finds that the course of instruction regarding ethics is appropriate to the circumstances of this case and will assist in the rehabilitation of the Member. As the Member was required by his Board to complete a course on ethics in 2018, the Panel trusts that the new course syllabus will address the concerning pattern of the Member’s dishonest behaviour. The coursework will remind the Member of his obligations as a teacher and will help him make ethical decisions and uphold the standards of the teaching profession.

17The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.