DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Fisher 2021 ONOCT 66

Date: 2021-07-09

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

Nathaniel Roger Todd Fisher, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NATHANIEL ROGER TODD FISHER (REGISTRATION #531877)

PANEL: Nicola Powadiuk, OCT, Chair

Azeem Khan

Anne Resnick

HEARD: July 6, 2021

Christine Lonsdale, for the Ontario College of Teachers

Amin Nur, for Nathaniel Roger Todd Fisher

Rebecca Durcan, 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 person who was allegedly sexually abused or the subject 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 July 6, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Nathaniel Roger Todd Fisher (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of the reprimand as agreed to by the parties. 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 who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated July 17, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Nathaniel Roger Todd Fisher 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 and/or sexual misconduct as defined in section 1 of the Act;

(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(e) 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);

(f) 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

(g) 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. Nathaniel Roger Todd Fisher 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 School Board as a teacher at [XXX] School (the “School”) in Bradford, Ontario.

Academic year 2015-2016

3. In the academic year 2015-2016, Student 1 was a female Grade [XXX] student at the School. In both the first and second semesters of the academic year, Student 1 was enrolled in classes taught by the Member. Student 1 turned [XXX] years of age on March 25, 2016.

4. Student 1 was experiencing difficulty and would sometimes cry at school. The Member tried to comfort Student 1 and also advised her to seek support from the School’s guidance counsellor, which she did.

5. Over the course of the 2015-2016 academic year and during the time when Student 1 was enrolled in classes taught by the Member, the Member began to share inappropriate and personal information with Student 1, about the Member’s life and his marriage.

6. During the 2015-2016 academic year, the Member also engaged in an inappropriate personal relationship with Student 1, which included:

(a) exchanging lengthy electronic communications of a personal and sexual nature via the website Red Bubble and/or other social media sites;

(b) sending personal notes to Student 1, including handwritten notes and/or Google documents;

(c) loaning Student 1 a [XXX];

(d) loaning Student 1 a [XXX] system from the School’s [XXX] club;

(e) discussing his personal life, including his childhood, his marriage, and his children, with Student 1;

(f) suggesting to Student 1 that she and the Member meet clandestinely outside of school.

7. The Member pursued a personal relationship with Student 1 which was sexual and/or romantic in nature during the time when Student 1 was enrolled in classes taught by the Member.

8. The Member’s behaviour had a negative impact on the psychological and emotional well-being of Student 1.

9. In May 2016, Student 1’s father discovered the lengthy communications of a personal and sexual nature exchanged between the Member and Student 1, and disclosed this information to School administrators.

10. On or about May 27, 2016, the Member was instructed by School administrators to cease communications with Student 1. The Member continued to communicate with Student 1 by electronic means.

11. Student 1 [XXX] from her [XXX] in June 2016.

June 2016 to June 2017

12. On or about July 5, 2016, the Board made a report to the Ontario College of Teachers (“OCT”) regarding the Member’s inappropriate relationship and communications with Student 1. The OCT opened an investigation.

13. In the period June 2016 to June 2017, the Member continued to engage in inappropriate electronic communications with Student 1, including making comments of a sexual and/or romantic nature. The inappropriate comments included:

(a) Saying “If you want to talk to me, I want to talk to you. But, it doesn’t make sense until after the OCT finishes their own investigation…Try not to feel bad about this. I’m not worried about it. You can’t control your dad. You trusted him to be a good person. I knew what I was risking. I did it anyways”;

(b) Saying “Trying to help someone isn’t illegal…Falling for someone you have a natural connection with is fundamentally human. Love is not a mental illness…There is light at the end of this tunnel if you want to follow it. I will send you a message sometime after the OCT investigation finishes up”;

(c) Saying “I really miss you…To be honest, the thing I’m most anxious about losing now, is you from my life”;

(d) Saying “You captured my heart”;

(e) Referring to Student 1’s family as “toxic people” and making negative and/or disparaging remarks about her parents;

(f) Encouraging Student 1 to leave her family and continue a relationship with the Member;

(g) Saying “It’s OK to send me an anonymous message to say what you are thinking and feeling if you want to. It is very low risk, almost none if you have moved out. I’ve been being overly paranoid, I don’t want you to have to fear them for me as well”;

(h) Saying “I care whether you live or die. I really don’t blame you for anything. You were trying to protect me. You had my back. I’ll check back now and then to see what you are reblogging”;

(i) Saying “I’m sorry for contacting you again after I said I wouldn’t. I’m trying. I don’t want to give up on you. I don’t feel good that I broke that word. I feel that I have to, for myself. To try and sort it out in my mind and heart”;

(j) Saying “I wanted to let you know the next ask I send will be the long one. So you know in advance. I hope you are as well as you can be in your situation”;

(k) Discussing with Student 1 the complaint made by Student 1’s father to the School;

(l) Saying “I miss talking to you, so very much…If I didn’t care about you as much as I do, I’d have given up. I needed to know because if you just wanted my friendship, I’d have to coach myself toward that…In the next month or so, I’ll send a link to a larger file on us, and how/when we can talk again. I miss you…”;

(m) Saying “I need to know what you want. I could read you as a person, your expressions, body language and tone. Tumblr is harder…If you want to be friends: reblog GTA V, if you want to be more than friends: reblog Fallout 4. Knowing will help me moving forward”.

14. The Member continued to contact Student 1 while she was [XXX] and after she asked the Member to stop contacting her. In June 2017, Student 1 went to the police to report the Member’s continued communications.

15. On September 27, 2002, the Ontario College of Teachers approved a professional advisory related to sexual abuse and sexual misconduct. Attached hereto and marked as Exhibit “B” is a copy of the College advisory.

16. On September 27, 2017, the Ontario College of Teachers approved a professional advisory on the use of electronic communications and social media. Attached hereto and marked as Exhibit “C” is a copy of the College advisory.

17. The Member is currently on a long-term disability leave from the Board.

PLEA OF NO CONTEST

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

19. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member further does not contest that the alleged conduct constitutes sexual abuse as defined in Section 1 of the Act.

20. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

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

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

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct.

(e) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

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

21. 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.

22. In light of the Uncontested Facts and the 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 allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought as a result of the parties’ negotiations in an adversarial process that led to the Statement of Uncontested Facts and Plea of No Contest and because proceeding under both subsections 1(5) and 1(14) could be duplicative. The Panel granted this request.

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 July 6, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student 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 17 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 Member engaged in an inappropriate relationship of a personal and sexual nature with Student 1.

10The Uncontested Facts demonstrate that the Member psychologically or emotionally abused Student 1, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Panel accepts that the Member’s personal notes, messages discussing his personal life as well as his communications of a sexual nature with Student 1 had a negative impact on the psychological and emotional well-being of the Grade [XXX] student. The Panel further finds that communications of a personal and sexual nature with a teacher would reasonably have had a negative psychological or emotional impact on a student, especially as she was experiencing personal challenges that she had disclosed to the Member. The Panel also places weight on the fact that the Member did not contest that his conduct constitutes psychological or emotional abuse of a student.

11The Panel finds that the Member’s conduct constitutes sexual abuse of Student 1 contrary to subsection 1(7.3) of Ontario Regulation 437/97, and as defined in section 1 of the Act. Sexual abuse is defined at section 1 of the Act and includes behaviour or remarks of a sexual nature by a member towards a student. Although some of the Member’s inappropriate communications with Student 1 continued after Student 1 [XXX] in June 2016 [XXX], the Panel received sufficient evidence of sexual abuse from the 2015-2016 academic year, when Student 1 was in Grade [XXX] and taught by the Member. During that time period, the Member exchanged lengthy electronic communications of a personal and sexual nature with Student 1 on various social media platforms and relentlessly pursued a personal relationship with the student through his communications, including by encouraging her to meet him in secret outside of school. This conduct constitutes sexual abuse as defined in the Act.

12The 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. By engaging in communications of a personal and sexual nature with Student 1 and by continuing to communicate with Student 1 in disregard of his school’s direction and the College’s investigation into his conduct, the Member’s behaviour clearly fell below the ethical standards of “Integrity” and “Trust” expected of members. By making disparaging comments about Student 1’s parents, encouraging Student 1 to leave her family, and by continuing to engage in inappropriate electronic communications with Student 1 after she asked him to stop, the Member demonstrated a serious breach of the ethical standards of “Care” and “Respect” in relation to Student 1, whom the Member knew to be vulnerable. Misconduct of this nature is so notorious and offside what is acceptable that expert evidence regarding the standards is not required to prove that the standards were breached.

13The 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 act as positive role models and to conduct themselves morally and with integrity, as described at subsection 264(1)(c) of the Education Act. Engaging in an inappropriate personal relationship of a sexual nature with Student 1, a vulnerable student, demonstrates an abuse of a teacher’s privileged position and is completely at odds with the fundamental duties of a teacher.

14The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The teaching profession does not tolerate the sexual abuse of students. The Member had a responsibility to prioritise Student 1’s well-being, which he failed to do by pursuing a personal relationship of a sexual nature with Student 1 through lengthy electronic communications over a period of many months. The Member’s egregious conduct demonstrates moral failings that call into question his ability to practice the profession and were clearly disgraceful, dishonourable and unprofessional.

15The Member’s conduct was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is severely compromised when members engage in behaviour of a sexual nature with students.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 6, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

2. 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”).

G. REASONS FOR PENALTY DECISION

17The Member’s professional misconduct consisted of or included the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, in accordance with section 30.2(1) of the Act, the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel therefore makes both orders under the mandatory penalty provision in subsection 30.2(1) of the Act and notes that it has no discretion in this regard.²

18The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but finds it reasonable not to make these additional orders in light of the Member’s cooperation during the discipline process, his plea of no contest and the parties’ joint submission on penalty.

19The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Although the sexual abuse in this case occurred before the subsection 30.2 mandatory penalty provision came into force, section 63.2 of the Act provides that the mandatory penalty provisions at section 30.2 apply retrospectively where the sexual abuse occurred before April 3, 2019 and no order has been made under subsection 30(4) of the Act before then. These conditions are met in this case and the Panel must therefore retrospectively apply the mandatory penalty provisions set out at section 30.2 of the Act.