Discipline Committee of the Ontario College of Teachers
DECISION AND REASONS FOR DECISION
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
Michael William Van Gentevoort, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
MICHAEL WILLIAM VAN GENTEVOORT (REGISTRATION #441701)
PANEL: Mary Ellen Gucciardi, OCT, Chair Shanlee Linton, OCT Tom Potter
HEARD: November 30 and December 1, 2020
COUNSEL: Danielle Miller, for the Ontario College of Teachers Ewan Lyttle, for Michael William Van Gentevoort 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 November 30 and December 1, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Michael William Van Gentevoort (the “Member”) attended the hearing and had legal representation.
3At the outset of the hearing, Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (c), and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5), 1(15), and 1(16) of Ontario Regulation 437/97, be withdrawn. College Counsel provided the following reasons for her request. First, the allegations under subsection 1(5) were better captured by 1(14). Second, subsection 1(15) relates more appropriately to teachers’ conduct in a professional capacity and should be withdrawn since this request deals with off-duty conduct. Third, subsection 1(16) deals with criminal conduct, and does not apply since the criminal charge was withdrawn. The Panel granted these requests.
4At the conclusion of the hearing, the Panel reserved its decision. For the reasons that follow, the Panel finds that the Member is not guilty of professional misconduct as alleged by the College.
A. PUBLICATION ban
5The 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
6The allegations against the Member in the Notice of Hearing dated February 7, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Michael William Van Gentevoort 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 failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(c) 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);2
(d) 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);3
(e) 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); and
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Michael William Van Gentevoort is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Ottawa-Carleton District School Board as a teacher at Longfields-Davidson Heights Secondary School (the “School”), in Nepean, Ontario.
Person A is an adult member of the public. Person A and the Member both attend the same public park from time to time.
From in or around May 2016 until in or around November 2017, the Member engaged in threatening and/or intimidating conduct, including but not limited to:
(a) standing nose to nose with Person A during a verbal altercation;
(b) shouting at Person A in a heated and angry tone;
(c) threatening to injure Person A;
(d) warning Person A not to attend the park while the Member was there.
On or about September 10, 2017, the Member pushed Person A from behind causing Person A to fall to the ground.
On or about 17 September 2017, the Member made a threatening remark directed towards Person A by stating to Person A “You’re learning” when Person A was leaving the public park.
On or about October 26, 2017, the Member engaged in behaviour designed to intimidate Person A by standing approximately 10 metres from Person A and stared at Person A for approximately one minute;
On or around October 27, 2017, the Member engaged in behaviour designed to intimidate Person A by parking his truck outside of Person A’s home.
Between July 2017 and September 2017, the Member engaged in aggressive and/or intimidating [sic] directed at members of the public who were present in a public park.
Between July 1, 2017 to September 30, 2017, the Member committed mischief contrary to s.430(1)(c) of the Criminal Code of Canada.
C. THE MEMBER’S PLEA
7The Member denied the allegations set out in the Notice of Hearing.
D. THE EVIDENCE
8The Panel heard from five witnesses in total – three on behalf of the College and two on behalf of the Member. The Panel is mindful that it can accept some, none, or all of any witness’ testimony. When deciding how much of each witness’ testimony to accept, the Panel has considered the following factors: the witness’ ability to observe and recall the events, whether the witness has an interest in the outcome of the hearing that may cloud their recollection, the plausibility or reasonability of the evidence, and the internal and external consistency (or inconsistency) of the evidence.
(1) The College
9The College called three witnesses to prove the allegations set out in the Notice of Hearing. Two witnesses – Robert Pushman and Carol Martin – were eyewitnesses to the Member’s alleged misconduct. The third witness – Police Constable Natalie Fortin – testified about her investigation of the Member.
(a) Robert Pushman
10Robert Pushman lived in the same neighbourhood as the Member until he moved out in July of 2019. Mr. Pushman encountered the Member many times at Brown’s Inlet park, where they both attended to walk their dogs, usually in the mornings. Mr. Pushman testified regarding five distinct incidents during which he believed that the Member was violent or intimidating. Mr. Pushman also testified regarding some generally intimidating conduct by the Member.
11The first incident occurred in the winter of 2017. Mr. Pushman did not know who the Member was at that time. While at the dog park, the Member’s dog jumped on Mr. Pushman, pawed him in the face, and knocked his glasses askew. When Mr. Pushman approached the Member about it, he characterized the Member’s response as “outrageous”. While Mr. Pushman did not remember the Member’s exact words, he testified that the Member told him something to the effect of if Mr. Pushman wanted to use the dog park, he had to put up with dogs.
12The second incident occurred approximately one month later. Mr. Pushman was at the dog park with his friend, Carol Martin, and both of their dogs. The Member’s dog grabbed Ms. Martin’s hat from her head, which upset her. In response, Mr. Pushman said something to the Member about managing his dog’s behaviour, and the confrontation devolved into an angry yelling match, with swearing and profanity. Mr. Pushman testified that, during this altercation, the Member was threatening him with words such as “stay out of the park” and yelling at Mr. Pushman to leave him alone. Mr. Pushman admitted that he was also angry and that he was yelling and swearing at the Member. Following this incident, Mr. Pushman reported the Member to the police. However, at the time, he did not know the Member’s name or where he lived.
13Following the second incident, Mr. Pushman decided to find out where the Member lived. Mr. Pushman began following the Member home after he left the park. Mr. Pushman testified that he stayed about half a block or a block away from the Member and tried to be discrete about following him.
14The third incident occurred in May of 2017. Mr. Pushman did not specify what started the incident but testified that it became a “shouting match” and that the Member told him not to use the park when the Member was there, and not to go near the Member’s house. Mr. Pushman acknowledged that this was likely due to the fact that the Member knew that he was being followed by Mr. Pushman.
15The fourth incident occurred in July of 2017. Mr. Pushman testified that the Member had threatened him but did not provide details regarding what the Member said. He testified that this incident became a topic of discussion at the park, and that Mr. Pushman advised other people in the neighbourhood that they should contact the police if they had issues with the Member, as he believed that there was an open file with the police.
16The fifth incident occurred on September 10, 2017. Mr. Pushman was playing with his dogs with a ball, when the Member’s dog took his dogs’ ball. Mr. Pushman had seen this behaviour by the Member’s dog in the past. Mr. Pushman asked the Member to get the ball back and the Member refused, so Mr. Pushman grabbed the Member’s dog by the neck and got the ball. Mr. Pushman testified that, as he was walking away the Member either punched or pushed him from behind, causing him to fall down. The Member then told Mr. Pushman not to touch his dog, not to be in the park when the Member was there, and that Mr. Pushman was breaking all the rules. Following this incident, Mr. Pushman made a complaint o the police. One week later, Mr. Pushman was leaving the dog park as the Member entered the park and said, “you’re learning”. What Mr. Pushman took from this remark is that the Member meant that Mr. Pushman was heeding his request not to be at the park when the Member was there.
17Mr. Pushman testified that the Member began being generally intimidating towards him later in September 2017. The Member stood behind him at the park and was staring at him; he also parked his truck near Mr. Pushman’s house but drove away when Mr. Pushman saw him. Mr. Pushman testified that in the five or six months that followed the September 10th incident, he would often see the Member in the neighbourhood, walking his dog or driving his truck past Mr. Pushman’s house. Mr. Pushman also testified that he believed that the Member often video-taped him or took photos of him when they came into contact with each other.
18In considering Mr. Pushman’s evidence, it was clear to the Panel that he has animosity towards the Member. He was combative with Member’s Counsel even when asked simple questions, such as how often he attended Brown’s Inlet Park. He admitted to following the Member home on several occasions in an attempt to find out where he lived, and he admitted that he continued to walk past the Member’s home although it was out of his way and he could have taken a different route to avoid a confrontation with the Member. Additionally, Mr. Pushman admitted that he addressed the Member aggressively on more than one occasion, that he called the Member an “asshole”, and the Panel saw a video of one such incident where Mr. Pushman yelled “hey fat boy” at the Member seemingly without provocation.
19Notably, in cross-examination, the Panel saw evidence that Mr. Pushman included an unverified rumour about the Member in his complaint to the College – that a child named [XXX]was forbidden from going to the park because of some action of the Member. Mr. Pushman admitted that he tried to make it sound as if [XXX] was afraid to come to the park because of the Member. Mr. Pushman admitted that this was a rumour and he did not remember who he heard it from. The Panel finds it significant that Mr. Pushman included an unverified rumour in his complaint to the College. The fact that Mr. Pushman was willing to do so is indicative of the animosity that Mr. Pushman feels towards the Member.
(b) Carol Martin
20Carol Martin lives in the same neighbourhood as the Member. At the relevant time period, she lived two doors down from Mr. Pushman and attended the Brown’s Inlet dog park daily. Ms. Martin and Mr. Pushman have been friends for more than 15 years. At the relevant time period, they walked their dogs together, attended at each other’s homes, and discussed the Member often – approximately 20 times, according to Ms. Martin.
21Ms. Martin testified regarding the incident in the early spring of 2017, when she attended Brown’s Inlet with Mr. Pushman. While at the park, she bent down, and the Member’s dog lunged at her head and grabbed her hat, which caused her to topple over into the snow. The Member was at least 20 metres away at the time, and Mr. Pushman began yelling at the Member to control his dog. In response, the Member came over towards Ms. Martin and Mr. Pushman, got within a foot of Mr. Pushman, and said something to the effect of “what are you gonna do about it, asshole”. Ms. Martin was afraid that a fight was going to break out between the two of them, she was terrified of the Member, she wanted to get away from the situation, and so she and Mr. Pushman left the park. Following this incident, Mr. Pushman advised Ms. Martin that he called the police, and the police interviewed her about what happened at the park. She was also interviewed by by-law officers in relation to the behaviour of the Member’s dog. However, she declined to make a formal complaint.
22Following this incident, Ms. Martin observed the Member filming her and Mr. Pushman from across the street, and she also observed the Member in his truck parked outside of Mr. Pushman’s home more than once. Ms. Martin also testified about seeing the Member fail to control his dog’s bad behaviour, fail to pick up after his dog, and make rude remarks such as “I’ve left you a present” to other park attendees. Overall, Ms. Martin characterized the Member’s behaviour as aggressive and bullying.
23In her testimony, Ms. Martin mentioned that another woman at the park has had several confrontations with the Member, which led the woman to fear for her own safety and the safety of her daughter. However, Ms. Martin did not observe these incidents and, as such, did not provide further details about these confrontations, when they occurred, or what the Member did to cause the woman to fear for her safety. As such, information regarding this other woman was not helpful to the Panel in determining the issues before it in this case.
24Ms. Martin testified about Mr. Pushman’s disposition regarding the Member. She confirmed Mr. Pushman’s testimony that he is not afraid of or intimidated by the Member. She also testified that, when it comes to dealing with the Member, Mr. Pushman is not always the smoothest guy, he is not diplomatic, and he can be “prickly”. She claims that it is possible that, after the Member’s dog grabbed her hat, the Member did not see what happened, and was reacting to Mr. Pushman yelling at him.
25The Panel believed the evidence of Ms. Martin regarding her observations of the Member. She was a credible witness and was unshaken in cross-examination. The Panel is mindful of Ms. Martin’s close relationship with Mr. Pushman and finds that they likely discussed the Member many times during the events at issue in this case. The Panel also finds that, because of their friendship, Ms. Martin may very well have downplayed Mr. Pushman’s aggression towards the Member. Nevertheless, the Panel finds that Ms. Martin was truthful in her testimony regarding the events that she observed at Brown’s Inlet.
(c) Police Constable Natalie Fortin
26Police Constable Natalie Fortin is a constable with the Ottawa Police Service. She was involved in the investigation of the Member, but she was not the only investigating officer. As part of her duties in relation to this investigation, P.C. Fortin reviewed the complaint made by Mr. Pushman. She also spoke with four other individuals regarding the behaviour of the Member.
27Based on the information that P.C. Fortin received regarding the Member’s alleged assault of Mr. Pushman, she decided that she did not have reasonable and probable grounds to charge the Member.
28The four individuals that P.C. Fortin spoke with indicated that they were fearful of going to Brown’s Inlet park, fearful of the Member, afraid to be in the park while the Member was there and felt that he was aggressive and intimidating. Based on the information provided by these individuals, P.C. Fortin decided that she had reasonable and probable grounds to charge the Member with mischief. P.C. Fortin testified that she believes that this charge was dealt with by a Criminal Code s. 810 peace bond, but she was not sure of the exact nature of the resolution. Ultimately, she confirmed that the charges were withdrawn.
29P.C. Fortin testified regarding the Member’s demeanour when she attended his home to formally lay the charges. She testified that the Member purposely stood close to her and towered over her, trying to intimidate her. She further testified that the Member disagreed with the investigation, felt that he was the one being harassed, and made a snarky comment about her salary.
30The Panel had no concerns with P.C. Fortin’s credibility and accepts her evidence in its entirety. However, the Panel did not find P.C. Fortin’s evidence particularly helpful in deciding the issues before it. P.C. Fortin spoke to four individuals (aside from Mr. Pushman) who were afraid of the Member and who were afraid to attend Brown’s Inlet Park in the presence of the Member. These individuals felt that the Member was aggressive and intimidating. P.C. Fortin did not provide details about any actions of the Member that caused the individuals to feel this way. The Panel accepts that P.C. Fortin’s evidence is relevant to the state of mind of these four community members. P.C. Fortin also described how she interpreted the Member’s behaviour when she spoke to him, but there is no allegation in the Notice of Hearing regarding the Member’s interaction with P.C. Fortin. In the absence of testimony regarding what the Member did to make the community members feel scared and intimidated, the Panel finds that P.C. Fortin’s evidence does not assist it in determining whether the Member engaged in the behaviour alleged in the Notice of Hearing and if so, whether that behaviour constitutes professional misconduct.
(2) The Member
(a) The Member’s Testimony
31The Member testified as part of his defence. He testified that his dog is a 175lb half Cane Corso and half Doberman. The Member confirmed that his dog does not always listen to him, that his dog routinely takes balls and toys from other dogs, that his dog has jumped on strangers, and that his dog has grabbed people’s hats off their heads. However, the Member testified that he is generally a diligent dog walker, and that for the most part he cleans up after his dog.
32In his evidence, the Member addressed some of the incidents testified to by Mr. Pushman. The Panel will deal with the incidents in chronological order.
33The Member testified about the first incident in the winter of 2017. He confirmed that this was the first time that he met Mr. Pushman. The Member had a slightly different version of this incident than Mr. Pushman. The Member testified that, during this incident, his dog jumped up on Mr. Pushman and licked his face. However, the Member’s evidence was that Mr. Pushman’s glasses were not knocked off or damaged in any way, and that if they had been, the Member would have paid for them. Following this, the Member and his dog walked away from Mr. Pushman towards the centre of the park, when suddenly Mr. Pushman presented himself right in front of the Member and said “that was assault”. At this point, the Member’s dog jumped and licked Mr. Pushman’s face again, and Mr. Pushman grabbed the Member’s dog in response and refused to let go. Eventually, Mr. Pushman let go of the dog, the Member said, “don’t touch my dog again” and the Member left the park.
34With respect to the second incident involving Ms. Martin, the Member did not recall meeting Ms. Martin at all. He did recall an incident where Mr. Pushman yelled at him words to the effect of “hey asshole, control your dog”, and the Member saw Mr. Pushman standing with a woman. In response, the Member came over to Mr. Pushman and controlled his dog as requested.
35The Member did not testify specifically regarding the third and fourth incidents and he broadly denied ever threatening Mr. Pushman. However, the Member testified that he told Mr. Pushman that if Mr. Pushman did not want the Member’s dog to take his ball, that Mr. Pushman should have waited to attend the park until the Member left.
36Regarding the fifth incident, the Member testified that his dog had taken Mr. Pushman’s ball on this occasion. Seeing this, Mr. Pushman said something to the effect of “hey asshole, are you gonna get my ball back”, and the Member responded “maybe”. The Member was approximately 10-20 metres away from Mr. Pushman and his dog at the time. In an attempt to get his ball back, Mr. Pushman grabbed the Member’s dog by the collar, and the Member’s dog pulled Mr. Pushman for a few strides. According to the Member, Mr. Pushman then tackled the Member’s dog to the ground, grabbed the ball out of the dog’s mouth, and attempted to lift the Member’s dog by his collar up to shoulder height. The Member asked Mr. Pushman to let his dog go and when he did not, the Member pushed Mr. Pushman’s shoulder in an attempt to separate him from his dog. Mr. Pushman then performed a roll like a football player and popped back up on his feet. The Member did not testify regarding whether he said something to the effect of “you’re learning” to Mr. Pushman following this incident.
37Shortly after this incident, the Member was charged with mischief. The Member testified that, after he was charged, he began filming his interactions with Mr. Pushman as a form of self-defence when he walked his dog. The Member was trying to show that, in fact, Mr. Pushman was the aggressor because Mr. Pushman would routinely follow him or come near his house. The Member did not testify regarding parking his truck on Mr. Pushman’s street.
38In cross-examination, the College put forward a thread of posts about the Member from the website “reddit” to undermine his credibility, in particular regarding his testimony that he was a diligent dog owner. The Panel did not find this evidence helpful and has given it very little, if any, weight for two main reasons. First, the College has not authenticated the thread. It is theoretically possible that all the posts were made by the same person. As such, the thread does not automatically support the College’s submission that there is a community out there which has witnessed the same behaviour from the Member. Second, the College did not identify the timing of the posts on the thread. The reddit thread was printed on November 23, 2020 and all the posts are labeled “one year ago”, as such, even if the College had proven the authenticity of the posts, the thread does not deal with the Member’s behaviour at the time of the events alleged in the Notice of Hearing.
39The Panel found some of the Member’s testimony to be incredible and excessively self-serving. In particular, the Panel found the Member’s recounting of Mr. Pushman’s treatment of his dog – that he flipped the Member’s dog over, that he looked at the Member with unimaginable rage, and that he performed some kind of “football moves” after tackling the Member’s dog – to be entirely incredible and non-sensical.
40However, the Panel believed some of the Member’s testimony, especially where it was consistent with the testimony of other witnesses, or where it made sense in the context of the events to which he was testifying. Given the video recording showing Mr. Pushman calling over to the Member, the Panel accepts the Member’s testimony that Mr. Pushman greeted him on a regular basis with “hey asshole” or in some other disparaging manner. The Panel further believes the Member that, on September 10, 2017, he shoved Mr. Pushman only with the purpose of getting Mr. Pushman to let go of his dog. The Panel will deal with the Member’s testimony further when making our findings of fact.
(b) Francis [XXX]
41Francis [XXX] is [XXX]’s mother. She confirmed that [XXX] used to take their puppy to Brown’s Inlet Park in the mornings. She also confirmed that [XXX] never complained to her about the Member and that she had not heard anything about the Member from either [XXX] or his brothers. She confirmed that she did not tell [XXX] to avoid the dog park for any reason.
E. SUBMISSIONS OF COLLEGE COUNSEL
42College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.
43College Counsel submitted that the Panel should prefer the testimony of its witnesses to that of the Member, and that their testimony confirmed that the Member is an angry man who is quick to lose his temper, who does not follow social conventions, and who takes no responsibility for himself or his dog’s actions.
44Regarding the specific findings of misconduct, College Counsel submitted that the Member breached the ethical standards of the profession in section 32.02 of the Bylaws, and therefore breached subsection 1(14) of Ontario Regulation 437/97. In particular, the Member did not comply with the ethical standards of “respect” and “integrity”. College Counsel further submitted that all of the Member’s behaviour would fit within the definition of disgraceful, dishonourable, and unprofessional conduct, and conduct unbecoming a member contrary to subsections 1(18) and 1(19) of Ontario Regulation 437/97. This behaviour includes physical assault, making threats, stalking and harassing Mr. Pushman, taking no responsibility for his dog, and trying to use his size to intimidate individuals.
F. SUBMISSIONS OF the MEMBER
45Member’s Counsel submitted that the Panel should prefer the Member’s evidence over that of the College’s witnesses. Broadly, his submission was that Mr. Pushman should not be believed because has animus towards the Member. Further, Member’s Counsel pointed to incidents in Mr. Pushman’s testimony that showed issues with his temper and with his attitude towards the Member.
46Member’s Counsel further submitted that, if the Member did exert physical force over Mr. Pushman, that it was done in defence of his dog. It is not unreasonable for an individual to protect their pet, and the Member was only protecting his pet when he shoved Mr. Pushman. Overall, the Member submitted that the Panel should find the Member not guilty of professional misconduct.
G. DECISION ON FINDING
47The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities. The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct.
48Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel does not find that the College has met the burden of proof that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(18) and 1(19).
H. REASONS FOR DECISION
49The Panel has carefully reviewed the evidence and submissions presented in this matter. The Panel first sets out its factual findings and then explains why these facts do not give rise to a finding of professional misconduct as alleged in the Notice of Hearing.
50As stated above, the College has the burden of proving the allegations. This means that first, the College must prove that the behaviour alleged in the Notice of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct.
51In evaluating the evidence before it, the Panel reminds itself that it can accept all, some, or none of any witness’ evidence. The Panel can determine credibility based on logic, common sense and its experience.
52Once it has explained its factual findings, the Panel will discuss whether these facts support a finding of professional misconduct in accordance with the Act.
(1) Factual Findings
53The College called evidence regarding five incidents of the Member’s behaviour towards Mr. Pushman. The remainder of the College’s evidence related to allegations of general intimidation of Mr. Pushman and other park users. The Panel will discuss its findings regarding the five incidents testified to by Mr. Pushman in chronological order. Then it will deal with its findings regarding the general allegations of intimidating behaviour by the Member towards Mr. Pushman and other members of the public at Brown’s Inlet.
54The Panel believed most of Mr. Pushman’s evidence regarding the Member. However, there were some areas of his evidence which the Panel believes were exaggerated, partly due to his animosity towards the Member. Furthermore, the Panel believes that Mr. Pushman minimized his role in the incidents, which is reflected in our findings of fact.
55The Panel accepts the evidence of Mr. Pushman regarding the first incident, which occurred in the early months of 2017. We reject the evidence of the Member regarding this incident entirely. The Panel finds that the Member was likely not paying attention to his dog when his dog jumped on Mr. Pushman and knocked his glasses off. When confronted with his dog’s bad behaviour, the Member likely refused to take responsibility for his dog. In response, Mr. Pushman, by his own admission, became angry, upset, and was yelling at the Member. The Panel finds that the Member’s conduct on this occasion was unreasonable and rude, and that he could have handled the situation differently. However, in all of the circumstances we do not find that this behaviour by the Member rises to the level of professional misconduct.
56The evidence of Mr. Pushman and Ms. Martin is consistent with respect to the second incident that occurred in the early spring of 2017. The Member did not remember this incident very well, except for Mr. Pushman yelling at him “hey asshole, control your dog”. Ms. Martin also confirmed that Mr. Pushman may have yelled something to the effect of “asshole” and “control your dog” at the Member. The Panel accepts the evidence of all three witnesses regarding this incident. The Panel finds that it is likely that the Member’s dog snatched the hat off Ms. Martin’s head, and that Mr. Pushman then yelled something to the effect of “hey asshole, control your dog” at the Member. The Member likely took offence to being yelled at by Mr. Pushman and replied with something to the effect of “what are you gonna do about it, asshole”. This exchange led to a verbal altercation between the Member and Mr. Pushman during which both were yelling and swearing. The Panel accepts that the Member likely stood nose to nose with Mr. Pushman during this altercation. The Panel accepts Mr. Pushman’s evidence that, during this shouting match, the Member told him not to attend the park while he was there. The Panel did not hear any evidence from any of the witnesses that the Member threatened to injure Mr. Pushman during this (or any other) incident.
57The Panel accepts the evidence of Mr. Pushman that there was a third incident in May 2017 and a fourth incident in July 2017 that devolved into shouting matches between him and the Member. However, Mr. Pushman did not remember what was said during these incidents well enough for the Panel to be able to make a finding as to whether the Member threatened or intimidated Mr. Pushman on those occasions. Given the insufficient evidence regarding these incident, we make no factual finding or legal conclusion as to whether these incidents constitute professional misconduct.
58With respect to the fifth incident on September 10, 2017, the Panel finds that both the Member and Mr. Pushman likely exaggerated this incident in their evidence. Overall, the Panel accepts a combination of both of their evidence. The Panel finds that the Member was not paying attention to his dog or was generally standing too far away to effectively control his dog’s behaviour (approximately 10-20 metres). The Panel finds that the Member’s dog took Mr. Pushman’s ball, and as a result, Mr. Pushman was frustrated with the Member and with the Member’s dog. Mr. Pushman grabbed the Member’s dog by the nape of his neck and wrestled the ball away from the dog’s mouth. The Panel finds that, given the size of the Member’s dog, this likely took more than a couple of seconds, as described by Mr. Pushman. In the time that Mr. Pushman took to get his ball from the Member’s dog, the Member walked the 10-20 metres to Mr. Pushman and shoved Mr. Pushman off his dog. The Panel accepts Mr. Pushman’s evidence that after this incident, the Member told Mr. Pushman not to touch his dog and not to be in the park when the Member was there. The Panel finds that the Member was likely angry at Mr. Pushman for grabbing his dog. The Panel also accepts Mr. Pushman’s evidence that about a week after this incident, the Member said “you’re learning” to him as he was leaving the park.
59The Panel accepts Mr. Pushman’s evidence that the Member either took photos or video of him when the Member passed him in the street; however, the Panel is unable to find that this was done to intimidate or threaten Mr. Pushman. According to Mr. Pushman, he began following the Member home to find out where he lived. After Mr. Pushman found out the Member’s name and address, he continued to routinely walk by the Member’s home. When the police charged the Member with mischief, the Member says he began recording his interactions with Mr. Pushman to defend himself in his eventual trial, and to try and obtain evidence that Mr. Pushman was the aggressor in their interactions. The Panel accepts the Member’s explanation regarding why he was filming Mr. Pushman and, although we find the behaviour to be an unreasonable reaction by the Member, we do not find that doing so rises to the level of professional misconduct.
60The Panel accepts the evidence of Mr. Pushman and Ms. Martin that the Member parked his truck on their street on at least one occasion. The Panel notes that the College only alleged one incident of the Member parking his car outside of Mr. Pushman’s home. The Member did not testify regarding this allegation. In the absence of testimony from the Member, and seeing no reason for the Member to be parking his car in front of Mr. Pushman’s home other than to intimidate him, the Panel finds that this allegation has been made out by the College.
61Overall, the Panel finds that, based on the evidence before it, the behaviour of the Member can be described as a years-long feud with his neighbour, Mr. Pushman. During this feud, both the Member and Mr. Pushman engaged in unsavoury behaviour such as yelling, standing nose to nose with each other, and following each other around their neighbourhood. The Panel finds that Mr. Pushman took actions that escalated the two most troubling incidents alleged in the Notice of Hearing. Mr. Pushman called the Member a disparaging name when the Member’s dog grabbed Ms. Martin’s hat, and he grabbed the Member’s dog when the Member did not control his dog to Mr. Pushman’s satisfaction.
62The Panel finds that, during the relevant time period of the allegations, the Member was likely not a very diligent dog owner and not a good neighbour. We accept the evidence from Mr. Pushman and Ms. Martin that the Member did not pay attention to his dog’s misbehaviour and that he did not pick up after his dog on a number of occasions. Furthermore, the Panel finds that the Member’s reactions to being confronted about his dog tended to be dismissive and rude, even to police officers. Sometimes, the Member’s behaviour was disproportionate to what was necessary in the situation and served to escalate an exchange. However, the Member’s behaviour in the dog park community did not rise to the level of professional misconduct. In particular, the College has failed to prove the aggressive, threatening, or intimidating nature of many of the allegations and has failed to show why the behaviour constitutes professional misconduct. The Panel makes the following findings regarding the specific allegations in the Notice of Hearing:
- In relation to paragraph 4 of the Notice of Hearing:
(a) The College has proven that the Member stood nose to nose with Mr. Pushman during a verbal altercation. However, the College did not prove that this behaviour was threatening or intimidating, or indeed that Mr. Pushman was threatened or intimidated by it. Rather, this was a shouting match between two neighbours where both neighbours were equally engaged in the altercation.
(b) The College has proven that the Member shouted at Mr. Pushman. This was in response to being yelled at by Mr. Pushman, and both the Member and Mr. Pushman were equally engaged in the altercation.
(c) The College has not proven that the Member threatened to injure Mr. Pushman;
(d) The College has proven that the Member told Mr. Pushman not to attend the park while the Member was there.
The College has proven that the Member pushed Mr. Pushman. However, the pushing was done in an attempt to force Mr. Pushman to release his dog.
The College has proven that the Member stated “you’re learning” to Mr. Pushman, as Pushman was leaving the park.
The College has proven that, on one occasion, the Member stared at Mr. Pushman. The College has not proven how close the Member was to Mr. Pushman at the time, that the staring occurred for one minute, or that the behaviour was designed to intimidate Mr. Pushman.
The College has proven that the Member parked his truck outside of Mr. Pushman’s home. The Panel finds that this behaviour was likely a retaliation to Mr. Pushman repeatedly walking past the Member’s home. The College has proven that this was likely designed to intimidate Mr. Pushman.
While the College did call evidence that some members of the public may have felt intimidated by the Member, the College has not proven that the Member engaged in aggressive and/or intimidating behaviour directed at members of the public (other than Mr. Pushman) who were present in a public park between July 2017 and September 2017.
(2) Legal Conclusions
63In its closing submissions, the College submitted that the Member is a man who is quick to lose his temper, does not follow basic social conventions of dog ownership, does not pick up after his dog, is indifferent about how his dog affects others, is unapologetic about his dog’s misbehaviour, views his dog as his property, and does not take responsibility for his dog. The Panel agrees that the evidence in this case may support this characterization of the Member. However, the Panel is cognizant that it should not be making its decision based on evidence regarding the Member’s character generally, but instead should focus on whether the Member’s behaviour, as proven by the evidence, constitutes professional misconduct under the Act. We find that it does not. The Panel finds that the Member’s conduct set out above does not rise to the level of professional misconduct as alleged by the College.
64This case involves the Member’s “off-duty conduct”. The Member’s behaviour occurred outside of the classroom, outside of his school, and outside of his school community. Off-duty conduct can be, and often is, professional misconduct. However, to rise to the level of professional misconduct, off-duty conduct has to engage either the broader public interest or the reputation of the profession (see: Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821). In this case, the Panel finds that the Member’s behaviour does not engage either the broader public interest or the reputation of the profession for two reasons.
65First, most of the behaviour proven by the College can be said to be private behaviour between the Member and Mr. Pushman. There were no witnesses, other than Ms. Martin, to the Member pushing Mr. Pushman, to him staring at Mr. Pushman, and to him filming Mr. Pushman. The College failed to prove any allegations relating to intimidating and aggressive conduct by the Member towards the community at large. Second, the Panel finds that the behaviour proven by the College is not serious enough to be more than simply rude, unsavoury, or unreasonable behaviour by the Member in his personal life.
66The Panel also notes that the College did not make submissions with respect to the particular issue of off-duty conduct or provide cases to the Panel dealing with similar conduct that was found by a discipline panel or a court to constitute professional misconduct.
67The College submitted that the Member’s behaviour is a breach of the Bylaw 32.02 of the College Bylaws and, therefore, a breach of subsection 1(14) of Ontario Regulation 437/97. Bylaw 32.02 outlines the Ethical Standards of the Teaching Profession. Broadly, the ethical standards represent “a vision of professional practice”. While the Panel accepts that there may be some situations in which the ethical standards may apply to conduct outside of the classroom, the wording of the ethical standards suggest that they are expectations for members’ teaching practice, or standards for members’ professional commitments and responsibilities, and not standards for general behaviour outside of the teaching profession. College Counsel submitted that the standards of “respect” and “integrity” apply in this case. The Panel finds that in both these standards, it is contemplated that the standards are intended to apply specifically to professional practice. The standard of “respect” states:
Intrinsic to the ethical standard of Respect are trust and fair-mindedness. Members honour human dignity, emotional wellness and cognitive development. In their professional practice, they model respect for spiritual and cultural values, social justice, confidentiality, freedom, democracy and the environment.
And the standard of “integrity” states:
Honesty, reliability and moral action are embodied in the ethical standard of Integrity. Continual reflection assists members in exercising integrity in their professional commitments and responsibilities.
In the absence of submissions as to how the Ethical Standards apply to off-duty conduct, the Panel declines to apply them as standards for general behaviour outside of the teaching profession.
68In the absence of focussed submissions as to how the Member’s conduct was otherwise a breach of the Act or the Bylaws or the Regulations, the Panel declines to make a finding that the Member’s conduct was a breach of subsection 1(14) of Ontario Regulation 437/97.
69The Panel finds that the Member’s behaviour was not an act that, having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Disgraceful, dishonourable or unprofessional conduct is broadly conduct that reflects poorly on the individual. Disgraceful conduct is the most severe – this is conduct that casts serious doubt on the Member’s moral fitness or ability to be a member of the profession. Dishonourable conduct is similar but not as severe – this is conduct that has an element of moral failing and is usually engaged by, but is not limited to, conduct of dishonesty, deceit, fraud, or other similar crime of morality. Unprofessional conduct is conduct that involves poor professional judgment by a member. The Member’s conduct in this case does not rise to the level of any of these categories. The Member’s proven conduct, while unsavoury, boils down to an ongoing feud with a neighbour and to poor management of his very large and poorly behaved dog. The Member’s behaviour does not rise to the level of threatening, aggressive, or intimidating conduct as alleged. As such, the conduct is not so severe as to cast doubt on the Member’s moral fitness, represent issues of moral failing, or engage the Member’s professional judgment.
70The Panel finds that the Member’s behaviour was not unbecoming a member. Conduct unbecoming a member is conduct that is so severe that it undermines the reputation of the profession as a whole. As previously stated, this is not such a case. While the Member’s behaviour is certainly not to be commended, the reputation of the profession is not undermined by the fact that a teacher engaged in a months-long, or even years-long, dispute with a neighbour, or that a teacher got into some altercations with his neighbour. This is particularly true if that neighbour was following the teacher, yelling at the teacher, and calling that teacher profane names. The Panel disagrees with the College’s submission that individuals would be horrified to learn that a teacher engaged in this conduct.
71That said, the Panel would encourage the Member to reflect carefully on his behaviour, to take steps to control his anger in future, and to carefully consider how his cavalier attitude about controlling his very large dog might ultimately have horrific consequences for a child or for the dog itself.
I. CONCLUSION
72For the reasons given, the Panel finds the Member not guilty of the allegations of professional misconduct as alleged in the Notice of Hearing.
Date: February 9, 2021
Mary Ellen Gucciardi, OCT Chair, Discipline Panel
Shanlee Linton, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel