Ontario College of Teachers v. Gauthier, 2021 ONOCT 60

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Gauthier 2021 ONOCT 60

Date: 2021-06-16

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

Jaime Lee Marian Gauthier, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JAIME LEE MARIAN GAUTHIER (REGISTRATION #466044)

PANEL: Wanda Percival, Chair William Goldbloom Kimberley Westfall-Connor

HEARD: June 7, 2021

Jordan Glick and Aly Háji, for the Ontario College of Teachers

Deborah Guterman, for Jaime Lee Marian Gauthier

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

2Jaime Lee Marian Gauthier (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 August 28, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Jaime Lee Marian Gauthier is guilty of professional misconduct as defined in the Act in that:

(a) she 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);

(b) she 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. Jaime Lee Marian Gauthier 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 teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. In May 2015, the Member was issued a Letter of Expectation by the Principal of the School as a result of concerns that the Member had failed to maintain appropriate boundaries with a male Grade [XXX] student (“Student 1”), including communicating with Student 1 on social media and spending time alone with Student 1 out of the School. The Letter of Expectation was issued after the Principal had directed the Member to maintain appropriate boundaries with Student 1 on two separate occasions.

4. On May 14, 2015, the Member took a day off work on the basis that she was attending a medical appointment. However, that same day, the Member attended the School’s [XXX] game during instructional time when she was otherwise expected to return to her teaching duties.

5. During the academic year 2016/2017 and the academic year 2017/2018, the Member engaged in inappropriate conduct and failed to maintain appropriate boundaries with students at the School and students of the Board as follows:

(a) allowing female students to pick dead skin off of her back and allowing one or more female students to apply lotion on her back;

(b) communicating with students on social media even after being advised by the Board to cease doing so;

(c) driving students in her car; and

(d) playing videogames on her phone in class and playing videogames with students.

6. During the academic year 2017/2018, the Member had a female [XXX] student (“Student 2”) who was a [XXX] placed in her classroom. The [XXX] student shared an upcoming test with one or more students in the Member’s class. When the Member discovered this, she failed to report it to the School’s administration.

7. The Member's teaching history after the time of the incidents referred to herein has been without incident.

PLEA OF NO CONTEST

8. By this document, the Member agrees that the Discipline Committee can accept as correct for purposes of this proceeding only the facts and the exhibits referred to in paragraphs 1-7 above (the “Uncontested Facts”).

9. The Member hereby acknowledges that paragraphs 3-6 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) and pleads no contest to the allegations of professional misconduct against her, being more particularly:

(a) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(b) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

By this document, the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she 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 her name, shall be published in the official publication of the College;

(e) she understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

10. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practice Committee under protection of the Evidence Act, R.S.O. 1990, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, 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.

11. In light of the Uncontested Facts and circumstances and the plea of no contest, 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 June 7, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) [unprofessional only] and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 7 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against her. She 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 repeatedly failed to maintain appropriate professional boundaries with students.

8The Panel finds that the Member’s conduct would reasonably be regarded by members as unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The Panel accepts that the Member pleaded no contest to the allegation that her conduct was unprofessional but that her plea was silent with respect to the “disgraceful” and “dishonourable” portions of the subsection 1(18) allegation. While Member’s Counsel submitted that the Panel should formally withdraw the “disgraceful” and “dishonourable” portions of this allegation, the Panel accepts the submissions of College Counsel and the advice of Independent Legal Counsel that this is unnecessary. Subsection 1(18) relates to conduct that is “disgraceful, dishonourable or unprofessional”. The “or” is disjunctive. A plain reading of the provision makes it clear that a member can be found to have breached subsection 1(18) by engaging in conduct that is appropriately characterized as any one, two or three of the terms “disgraceful, dishonourable or unprofessional”. A subsection 1(18) finding does not, on its face, imply that the conduct was disgraceful, dishonourable and unprofessional.

9In this case, the Panel accepts that the Member’s conduct was unprofessional. The Member failed to maintain appropriate boundaries with students on several occasions. Among other things, she communicated with students on social media, including after her Board told her not to; she allowed a student or students to apply lotion to her back; she drove one or more students in her car; and she played videogames with students in class. The Member also failed to report to School administration that Student 2, who was a [XXX], shared an upcoming test with one or more students in the Member’s class. This behaviour demonstrated the Member’s lack of professional judgment. Teachers hold a unique position of trust and authority, and they are required to behave professionally and maintain professional boundaries with students at all times. The Member failed to meet these requirements.

10Additionally, the Member’s conduct was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. Conduct that includes repeated violations of appropriate professional boundaries with students undermines the reputation of the teaching profession and violates the trust that parents, students and the public place in teachers.

F. PENALTY Decision

11The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on June 7, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, 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 Member’s Certificate of Qualification and Registration for a period of one month commencing on the 15th calendar day following the date of the Decision and the Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 120 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense a course of instruction pre-approved by the Registrar regarding professional boundaries and a course of instruction pre-approved by the Registrar regarding appropriate communication with students using social media, both subject to the following conditions;

(i) the Member shall provide to a course provider 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 3(a)(i) above, the course provider shall provide to the Registrar, for approval, a syllabus for the proposed courses which specifically address the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabi proposed by the course provider 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 her completion of the courses outlined in 3(a) above, the Member shall provide to the Registrar a written report from the course provider stating that the Member has successfully completed the courses and reporting on the progress of the Member with respect to addressing the outlined goals of the courses.

G. REASONS FOR PENALTY DECISION

12The 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 restricts 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. Gillott, 2016 ONOCT 17, Ontario College of Teachers v. Balbahadur, 2019 ONOCT 9, Ontario College of Teachers v. Webster, 2015 ONOCT 86, Ontario College of Teachers v. Bagshaw, 2018 ONOCT 54 and Ontario College of Teachers v. Wilson, 2019 ONOCT 41.

13The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factor in the Member’s case is the fact that the Member repeatedly engaged in boundary violations with students despite having previously received a Letter of Expectation from the Principal of the School for similar misconduct. In terms of mitigating factors, the Member did not contest her misconduct, saving the time and expense of a contested hearing and has not been the subject of College discipline in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

14The Panel finds that the Member’s unprofessional conduct, which included the violation of appropriate boundaries with students in complete disregard of directions received from the Principal of the School, warrants a reprimand. Members are expected to act professionally and maintain professional boundaries with students at all times. 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.

15Given the nature and severity of the Member’s conduct, the Panel finds that a one-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 September 1, 2021.

16The Panel finds that the courses of instruction regarding (1) professional boundaries and (2) appropriate communication with students using social media will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students.

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