DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Tudor 2021 ONOCT 46

Date: 2021-04-30

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

Ian Frederick Tudor, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

IAN FREDERICK TUDOR (REGISTRATION #422146)

PANEL: Mary Ellen Gucciardi, OCT, Chair

Élaine Legault

Jonathan Rose

HEARD: December 7, 2020 and April 28, 2021

Andrew Matheson and Kathryn McChesney, for the Ontario College of Teachers

Jack Brown, for Ian Frederick Tudor

Julie Maciura and Erica Richler, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 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 identities of Student 1 and Student 2, being persons who were allegedly sexually abused or the subjects 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 December 7, 2020 (motion for production of third party records) and April 28, 2021 (hearing on the merits), in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Ian Frederick Tudor (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.

4Additionally, 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 and Student 2 who were allegedly sexually abused, or the subjects of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of, Student 1 and Student 2.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated February 27, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Ian Frederick Tudor 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 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;²

(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, 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

6College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Ian Frederick Tudor 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 Simcoe County District School Board (the “Board”) as a [XXX] teacher at [XXX] (the “School”) in Collingwood, Ontario.

3. During the 2017-2018 academic year, Student 1 was a [XXX]-year-old female student in the Members [sic] Grade [XXX] class.

4. During the 2017-2018 academic year, Student 2 was a [XXX]-year-old female student in the Members [sic] Grade [XXX].

Interaction with Student 1

5. In or around October 2017 the Member engaged in inappropriate behaviour that made Student 1 very uncomfortable.

6. On more than one occasion the Member made Student 1 uncomfortable by getting close to her when she was completing work in the classroom. When the Member would get close to Student 1 she would back up and say that she did not want the Members [sic] help.

7. On two or three occasions the Member also put his hand on Student 1’s shoulder. When this happened Student 1 told the Member not to touch her. The Member laughed and did not take his hand off her shoulder.

8. Student 1 was so distressed by this that she got up and left the classroom on one occasion.

Interaction with Student 2

9. In or around October 2017 the Member engaged in inappropriate behaviour that made Student 2 very uncomfortable.

10. On one of more occasions the Member stared at Student 2’s chest, making her uncomfortable.

11. On one occasion when Student 2 was working at a computer in the [XXX], the Member leaned over her shoulder and pointed to something. When he moved away he touched her breast without her consent. Student 2 felt violated by the Member’s closeness and touching of her breast which upset her. The Member has stated that the touching of Student 2’s breast was inadvertent.

PLEA OF NO CONTEST

12. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-11 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct [or incompetence]³, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(14), 1(15), 1(18) and 1(19). The Member further does not contest that the alleged conduct constitutes sexual misconduct as defined in Section 1 of the Act.

14. 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) [sic] 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.

15. 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.

16. 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

7Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (c) 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 allegation under subsection 1(5) 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 of the Act because the Uncontested Facts do not support a finding under this head of misconduct. The Panel granted these requests.

8Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on April 28, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 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

9The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 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 the Member engaged in sexual misconduct related to Student 1 and Student 2 and that he made both students feel very uncomfortable at school.

10The Panel finds that the Member psychologically or emotionally abused students contrary to subsection 1(7.2) of Ontario Regulation 437/97, through unwelcome physical contact and other behaviour that made students very uncomfortable. The Member stood too close to and put his hand on Student 1’s shoulder several times. Furthermore, on one occasion after Student 1 told the Member to remove his hand from her shoulder, he kept it there and laughed. Student 1 found the Member’s behaviour so upsetting that she left the classroom. By touching and intruding on Student 1’s personal space as the Member did, and by laughing during one incident, the Member caused Student 1 psychological or emotional distress. The Member also made Student 2 very uncomfortable by staring at her chest, and when he touched her breast while leaning in close to her. By this inappropriate behaviour, the Member also caused Student 2 psychological or emotional distress. The Panel finds that the Member’s touching and intrusion on Student 1 and Student 2’s private space was emotionally or psychologically abusive. The Panel also gives weight to the fact that the Member did not contest that his conduct amounts to psychological or emotional abuse.

11The Panel finds that the Member engaged in sexual misconduct, which is defined as follows in section 1 of the Act:

1(1) In this Act, [...] “sexual misconduct” means 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.

12In this case, the Panel accepts the parties’ submissions that the definition of sexual misconduct was met by the Member’s touching and intrusive behaviour towards Student 1 and Student 2, including standing very close to Student 1 and Student 2, staring at Student 2’s chest and touching Student 2’s breast. The Panel finds that a reasonable person would expect that this behaviour, which the Member does not contest was sexual in nature, would cause distress to adolescent female students, be detrimental to their well-being and create a negative environment at a school for the two students. The Panel places significant weight on the fact that the Member did not contest that his behaviour constitutes sexual misconduct. Therefore, the Panel finds that the Member’s conduct meets the definition of sexual misconduct.

13The 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 requires members to comply with the Ethical Standards and the Standards of Practice for the Teaching Profession. The Panel finds that the Member breached the ethical standard of “Care”. This standard expects members to express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy. The Member also breached the ethical standard of “Respect”, which requires members to honour human dignity, emotional wellness and cognitive development. It clearly falls below the standards of care and respect to make unwelcome physical contact with students, as the Member did with Student 1 and Student 2. It also falls below the standards to engage in behaviour that makes students very uncomfortable and causes them distress, such as when Student 1 left the classroom after the Member had kept his hand on her shoulder after she told him to stop touching her.

14The 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 expected to encourage students in the pursuit of learning, as described at subsection 264(1)(b) of the Education Act. By failing to respect students’ personal boundaries, touching them, and engaging in inappropriate behaviour of a sexual nature, the Member failed to prioritize student learning and created a negative environment in the classroom. He made students feel very uncomfortable at school, which is entirely at odds with the Member’s duties as a teacher.

15The Panel finds that the Member’s conduct is disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member behaved in a sexual way toward two students by touching them, standing too close to them, or staring at their chest. It is completely unacceptable for members to create a learning environment that makes students feel very uncomfortable because of the unwanted physical and sexual attention of their teacher. The Member’s conduct clearly rises to the level of a breach of subsection 1(18).

16Finally, 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 abuse their privileged position by engaging in inappropriate behaviour of a sexual nature towards students and by psychologically or emotionally abusing students.

F. UNDERTAKING AND ACKNOWLEDGEMENT

17On April 23, 2021, the Member entered into an Undertaking and Acknowledgement (Exhibit 4) with the College in which he agreed to the following terms:

1. I hereby resign as a member of the Ontario College of Teachers with immediate effect.

2. I undertake that I will not seek reinstatement of my Certificate of Qualification and Registration. For greater certainty, I undertake that I will never seek reinstatement of my Certificate of Qualification and Registration.

3. I undertake not to seek or accept employment in any teaching position in any public or private school in Ontario, or in any other position or capacity for which an Ontario Certificate of Qualification and Registration is required.

4. I understand that a breach of this Undertaking and Acknowledgment may constitute professional misconduct, and that in those circumstances, the Ontario College of Teachers will be at liberty to institute proceedings against me.

5. I acknowledge that my status on the Public Register of the Ontario College of Teachers will be “Cancelled – Resigned”, and there will be a notation on the Register as follows:

“On April 28, 2021, the Member was found guilty of professional misconduct. Reprimand. Publication in Professionally Speaking. On April 28, 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 I understand the scope, purpose and effect of my execution of this Undertaking and Acknowledgement and am executing same voluntarily, unequivocally, and with the advice of legal counsel.

G. 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 April 28, 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. By means of his undertaking, the Member undertakes to:

(a) resign and not seek reinstatement of his Certificate of Qualification and Registration. For greater certainty, he will never seek reinstatement of his Certificate of Qualification and Registration;

(b) not seek or accept employment in any teaching position in any public or private school in Ontario, or in any other position or capacity for which an Ontario Certificate of Qualification and Registration is required;

3. The Public Register of the Ontario College of Teachers will state that:

“On April 28, 2021, the Member was found guilty of professional misconduct. Reprimand. Publication in Professionally Speaking. On April 28, 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.”

H. REASONS FOR PENALTY DECISION

19The Panel accepts the penalty jointly proposed by the parties and notes that the Member has resigned as a member of the College and undertaken never to 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 and Acknowledgement, 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. Will, 2021 ONOCT 1 and Ontario College of Teachers v. Grima, 2020 ONOCT 183.

20The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors are the serious nature of the Member’s misconduct and that the Member engaged in similar inappropriate behaviour with two students, which caused distress for both students. In terms of mitigating factors, the Member admitted his misconduct, which prevented student witnesses from having to testify and saved the time and expense of a contested hearing, and he has no prior discipline history with the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties, in conjunction with the Member’s Undertaking and Acknowledgment, is reasonable.

21The Panel finds that the reprimand, together with the terms set out in the Member’s Undertaking and Acknowledgement, will serve as a specific deterrent to the Member and make clear to other members that the profession will not tolerate this kind of misconduct. In view of the serious nature of the Member’s misconduct, the Panel finds it reasonable that the Member will no longer teach or seek to return to the teaching profession in Ontario. In accordance with the terms of his Undertaking and Acknowledgement, the Member is no longer entitled to teach in publicly funded or private schools in Ontario. Members of the profession are expected to provide students with safe and supportive learning environments and to prioritize student well-being. The Member failed to do so by touching students’ bodies and failing to respect their personal space. His behaviour caused students distress and was sexual in nature. The reprimand, which was delivered to the Member via videoconference on April 28, 2021, allowed the Panel to directly address its concerns with the Member. Recording the fact of the reprimand on the Register, in addition to the notation agreed to by the parties and set out above, will serve as a general deterrent to other members of the profession.

22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: April 30, 2021

Mary Ellen Gucciardi, OCT Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Jonathan Rose Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3The Panel notes that no allegation of incompetence was made in this case and therefore no finding of incompetence will be made. The content of the parties’ Statement of Uncontested Facts and Plea of No Contest has been reproduced verbatim in the Panel’s Decision and Reasons.