DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Sherry Lee Johnson Lee, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
SHERRY LEE JOHNSON LEE (REGISTRATION #418106)
PANEL: Josée Landriault, OCT, Chair Natasha Feghali, OCT Emile Ramlochan
HEARD: May 28, 2021
Danielle Miller and Noam Uri, for the Ontario College of Teachers Jack Brown, for Sherry Lee Johnson Lee Renée Kopp, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on May 28, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Sherry Lee Johnson Lee (the “Member”) did not attend the hearing but 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 June 25, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Sherry Lee Johnson Lee is guilty of professional misconduct as defined in the Act in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);1
(b) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she engaged in sexual misconduct as defined in section 1 of the Act;2
(d) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(e) she 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) 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);
(g) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. AGREED STATEMENT OF FACTS
5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Sherry Lee Johnson Lee 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.
At all material times, the Member was employed by the Ottawa-Carleton District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Kanata, Ontario.
At all material times, Student 1 was a male Grade [XXX] student at the School.
During the 2017-2018 academic year, the Member engaged in an inappropriate personal relationship with Student 1, who demonstrated [XXX] on multiple occasions.
The Member started communicating with Student 1 at the beginning of November 2017, on a regular basis outside of school hours. The Member had provided her personal cell phone number to Student 1’s mother, which she did not provide to her son. The Member then emailed Student 1 her personal cell phone number.
The Member communicated with Student 1 via phone, email, text messages and a Google communication platform. Over several months the communication between Student 1 and the Member became excessively frequent and familiar, often at night. The communication continued despite repeated direction from the School administration and Student 1’s parents to stop. The Member ignored instructions from School administration and Student 1’s parents by sending messages to Student 1 with comments such as, “breaking all the rules, but fuck it,” and “when it comes to you and me, the OCDSB can go fuck themselves.”
Between December 25, 2017 and January 2, 2018, over a 9 day period, the Member and Student 1 exchanged about 2,800 text messages and had 20 hours of phone conversation. A lot of the contact was throughout the overnight hours. Student 1 had even posted excerpts of these messages on his bedroom wall. Many messages between Student 1 and the Member included language that they “loved” each other. The Member did not inform the School that their messages contained such language. The Member also did not report that Student 1 had expressed interest in purchasing gifts for her. The Member accepted one gift from Student 1.
On or about December 27, 2017, the Member attended Student 1’s house without parental permission and supervision. After a period of time, Student 1’s mother arrived home to find the Member and Student 1 sitting in the kitchen alone. The Member arranged the visit with Student 1. The Member did not speak with Student 1’s parents nor did she tell anyone at the School that she intended to visit Student 1’s home. Student 1 refused to explain to his parents why the Member was at their house.
On or about January 8, 2018, Student 1’s parents met with the principal to discuss their concerns about the Member. They reported that initially they found the Member to be a positive support for Student 1. However, the parents became concerned as they noticed behavioural changes with Student 1. They reported that he seemed increasingly angry and even violent towards his parents. Often after contact with the Member, Student 1 had angry and violent outbursts at home. Furthermore, Student 1 was increasingly withdrawn from his parents and other supports.
On or about January 18, 2018, Student 1 told the Member that he had set a date for his [XXX]. The Member did not say anything to Student 1. The Member subsequently left the School and did not tell anyone about Student 1’s [XXX] or plans. The Member did not direct Student 1 to the appropriate support resources. Over the weekend the Member engaged in a lengthy chat with Student 1, after which the Member did not feel that Student 1 was at risk. The Member acknowledges that she had no training or experience to make this determination.
The Member’s conduct jeopardized Student 1’s [XXX] and general wellbeing by fostering a relationship of significant emotional dependence. This caused harm to both Student 1 and his parents.
Board Discipline
The Member repeatedly lied to the Board during the course of the Board’s investigation and denied making statements, which were clearly indicated in the emails she had sent to Student 1.
The Board issued a letter of discipline to the Member on April 6, 2018. The Member was suspended without pay for twenty-five (25) days, followed by a Home Assignment with pay after the suspension until the end of the school year. The Member was to be transferred from the School effective the beginning of the next school year. The Board withdrew their offer from the School for the [XXX] Department Headship for the 2018-2019 academic year. The Member was also not permitted to apply for or accept a Position of Added Responsibility at a [XXX] school for three (3) years starting September 1, 2018. The Board also required the Member to take a boundaries training course prior to returning to the classroom. Attached hereto and marked as Exhibit “B” is a copy of the letter of discipline dated April 6, 2018.
Current Status
The Member had her own [XXX] struggles in response to this incident. The Member is currently not teaching.
The Member has entered into an Undertaking with the College. The Member agrees that submission [sic] will be made to the Committee with respect to the Undertaking.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(14), 1(15), 1(18) and 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 Admitted Facts being presented to the Discipline Committee;
(c) she understands that by pleading guilty 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 her and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) she understands and acknowledges that she is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.
- In light of the Admitted Facts and the circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
D. DECISION
6Counsel 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 subsection 1(5) of Ontario Regulation 437/97, and that the Member engaged in sexual misconduct 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 allegation that the Member engaged in sexual misconduct as defined in section 1 of the Act because the Admitted Facts do not support a finding under this head of misconduct. The Panel granted these requests.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on May 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).
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 15 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member developed an inappropriate personal relationship with Student 1.
9The Panel finds that the Member’s failure to maintain appropriate and professional boundaries with Student 1 was psychologically or emotionally abusive to the student, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member fostered and developed an inappropriate relationship that encouraged an unhealthy emotional attachment and dependency with Student 1. In her frequent communication with Student 1, the Member expressed inappropriate affection toward him, such that he believed that he and the Member “loved each other”. The Member’s conduct was particularly egregious given that Student 1 was struggling with [XXX] at the time. Student 1 told the Member about his plan to [XXX], but she never reported the student’s disclosure to the School or to Student 1’s parents, thereby jeopardizing Student 1’s emotional well-being and potentially [XXX].
10The Admitted Facts demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 32 of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. Among other things, members are expected to express their commitment to students’ well-being and learning through professional judgment (“Care”) and to be trustworthy in their professional relationships with students by embodying fairness, openness and honesty (“Trust”). The Member defied these expectations. For several months, the Member regularly and frequently communicated with Student 1, often at night. Over one nine-day period, the Member and Student 1 exchanged about 2,800 text messages and spoke on the phone for 20 hours. Many of these communications contained personal and inappropriate comments by the Member, expressing a high level of emotional intensity. By her inappropriate interactions with the student, the Member failed to prioritize Student 1’s well-being and demonstrated a serious lack of professional judgment. Her failure to report Student 1’s disclosure about his [XXX] to the School and to his parents and to direct Student 1 to appropriate professional supports demonstrates a serious breach of the ethical standards.
11The 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. The Member ignored repeated directions from her School’s administration and from Student 1’s parents to stop communicating with Student 1. On one occasion, she arranged to visit Student 1 while he was home alone without his parents’ knowledge or permission. She openly flouted her employer’s authority and made it known to Student 1 that she was doing so (“when it comes to you and me, the OCDSB can go fuck themselves.”). By breaching teacher-student boundaries and modeling disregard for the authority of her employer and Student 1’s parents, the Member failed to fulfil the duties of a teacher.
12The 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 Member admitted that her conduct can properly be characterized by all three terms. It is disgraceful, dishonourable and unprofessional for a member to take advantage of her position of trust and authority to engage in an inappropriate personal relationship with a student. A member’s conduct is characterized as “disgraceful” when it is so serious that it has the effect of shaming a member and by extension the profession, such that it casts doubt on a member’s moral fitness to practice the profession. The Member’s conduct was particularly egregious given Student 1’s vulnerability. The emotional dependency fostered by the Member’s interactions with Student 1 also strained his relationship with his parents and contributed to Student 1 becoming more withdrawn and estranged from his other social supports. Furthermore, the risk that the Member took by not alerting anyone about Student 1’s disclosure that he had set a date for his [XXX] prevented Student 1 from accessing appropriate and timely [XXX] help during [XXX]. This conduct demonstrates a high degree of moral failing that fits the meaning of disgraceful. “Dishonourable” conduct also has an element of moral failing to it and generally involves acts of dishonesty or deceit. The Member’s repeated lies to the Board about the content of her communications with Student 1 during the Board’s investigation and her defiance of her School’s direction to stop communicating with Student 1, are examples of dishonourable conduct by the Member. Finally, the Member’s conduct can also be characterized as “unprofessional” in that it involved a disregard for her professional obligations and a failure to demonstrate good judgment. It was highly unprofessional for the Member to not report Student 1’s disclosure about his [XXX] to her School and to determine, without any training or experience with [XXX], that Student 1’s well-being was not at risk. The Panel therefore finds that the Member’s conduct breached subsection 1(18) and that her conduct is properly characterized as disgraceful, dishonourable and unprofessional.
13Finally, the Member’s improper relationship with Student 1, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is seriously undermined when teachers abuse their privileged position to develop inappropriate personal relationships with students and behave in a way that puts a student’s safety and well-being at risk.
F. UNDERTAKING AND ACKNOWLEDGMENT
14On April 14, 2021, the Member entered into an Undertaking and Acknowledgment (Exhibit 4) with the College in which she agreed to a number of terms which must be met before she can hold a position for which a Certificate of Qualification and Registration is required. As these terms relate to the Member’s [XXX] health, they will not be set out in this decision. The following notation will, however, appear on the Public Register:
“On April 14, 2021, Sherry Lee Johnson Lee agreed not to teach in a public or private school in Ontario, for which a Certificate of Qualification and Registration is required, until the Member has complied with the terms of the Undertaking and Acknowledgment.”
Moreover, if the Member fails to comply with the terms of her undertaking, this failure may constitute professional misconduct and a complaint may be filed against her on that basis.
G. PENALTY DECISION
15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 28, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to receive a reprimand in writing and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of twelve (12) months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:
(a) within ninety (90)3 [sic] 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, subject to the following conditions:
(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea 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 (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within thirty (30) days of her completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:
(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
H. REASONS FOR PENALTY DECISION
16The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. The Panel finds that, given the Member’s Undertaking and Acknowledgment, 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 the parties: Ontario College of Teachers v. Riley, 2019 ONOCT 61; Ontario College of Teachers v. Gidney, 2020 ONOCT 174; Ontario College of Teachers v. Montgomery, 2018 ONOCT 4; Ontario College of Teachers v. Laforge, 2019 ONOCT 43; and Ontario College of Teachers v. Lepage, 2017 ONOCT 29.
17The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case: the nature of the Member’s misconduct led to significant emotional harm for Student 1; the fact that the Member repeatedly refused to follow her School administration’s direction and ignored Student 1’s parents’ requests to stop communicating with Student 1; and that the Member lied to the Board during the investigation into her conduct. In terms of mitigating factors, the Member admitted her misconduct, saving the time and expense of a contested hearing. Prior to these incidents, the Member had an unblemished 20-year teaching career and has not been the subject of discipline proceedings in the past.
18In addition, Member’s Counsel submitted that the Member was experiencing [XXX] struggles with [XXX] and that this should be considered mitigating on the penalty. College Counsel submitted in reply that there is no evidence that the Member’s conduct was tied to her [XXX]. The evidence demonstrates that the Member’s [XXX] challenges arose after her misconduct and should therefore not be considered as a mitigating factor in this case. The Panel agrees with College Counsel’s submission and finds that the Member’s health status is not a mitigating factor on this penalty.
19Finally, Member’s Counsel submitted that due to the fact that the Member has retired from teaching, she poses no further risk to students. While the fact that the Member is not interacting with students serves the goal of public protection, the Panel finds that the Member’s current employment status is neither an aggravating nor mitigating circumstance on the Member’s misconduct. 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.
20The Panel finds that the reprimand will serve as a specific deterrent to the Member. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession. Members of the teaching profession are expected to exercise sound professional judgment in all their interactions with students. As role models in a trusted position of authority, members must ensure the physical and emotional safety of students and maintain appropriate student-teacher boundaries at all times. The Member engaged in an emotionally charged personal relationship with Student 1 that caused the student distress and strained his relationship with his parents during a time when he was already [XXX]. The Member’s actions also prevented Student 1 from receiving timely [XXX] and appropriate support during a [XXX]. The Member’s conduct was completely unacceptable and demonstrates a disregard for the fundamental duties of a teacher. It also constitutes a serious breach of trust.
21Given the nature and severity of the Member’s conduct, the Panel finds that a twelve-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 lengthy 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 June 12, 2021, which is 15 days after the Panel’s Oral Decision and Order.
22The Panel finds that a course of instruction regarding professional boundaries 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 maintain appropriate and professional boundaries in any future interactions with students.
23With respect to the Member’s Undertaking and Acknowledgment, the Panel finds that the terms undertaken by the Member will ensure that members of the school community are adequately protected should the Member decide to return to a Teaching Position. The Member’s undertaking will protect the public interest by ensuring that the Member continues to comply with any [XXX], that her current [XXX] to the point where she might [XXX], and that the Member does not return to teaching before she is ready to handle the responsibilities of a teacher. Reports provided to the Registrar will help the College to monitor the Member’s condition.
24The Panel is satisfied that the penalty, in conjunction with the Member’s undertaking, is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: June 9, 2021
Josée Landriault, OCT Chair, Discipline Panel
Natasha Feghali, OCT Member, Discipline Panel
Emile Ramlochan Member, Discipline Panel