Ontario College of Teachers v. Burke, 2021 ONOCT 76 — Ontario College of Teachers | minicounsel

Citation: Ontario College of Teachers v Burke 2021 ONOCT 76 Date: 2021-07-29

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 Laurie Nicole Burke, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LAURIE NICOLE BURKE (REGISTRATION #590158)

PANEL: Jonathan Rose, Chair Natasha Feghali, OCT Kevin McCarthy

HEARD: July 22, 2021

Jean-François Schaan, for the Ontario College of Teachers Sean Lakhan, for Laurie Nicole Burke 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 identities of Student 1 and Student 2, Student 3, Student 4 and Student 6, being persons who were allegedly sexually abused or the subjects of the sexual misconduct or a prohibited act involving child pornography.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on July 22, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Laurie Nicole Burke (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of her 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, Student 2, Student 3, Student 4 and Student 6, who were allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 1, Student 2, Student 3, Student 4 and Student 6.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated November 10, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Laurie Nicole Burke 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);

(b) she released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

(d) 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);

(e) 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);

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

(g) she engaged in sexual misconduct as defined in section 1 of the Act.

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:

At all material times, Laurie Nicole Burke was a member of the Ontario College of Teachers. Attached as Appendix "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 Halton District School Board (the “Board”) as a Grade [XXX] teacher at [XXX] School (the “School”) in Oakville, Ontario.
In the academic year 2018-2019, Student 1 and Student 6 were Grade [XXX] male students in the Member’s class.
In the academic year 2018-2019, Student 2 was a Grade [XXX] female student in the Member’s class.
In the academic year 2018-2019, Student 3, Student 4 and Student 5 were Grade [XXX] male students in the Member’s class.
During the 2018-2019 academic year, the Member inappropriately communicated with Student 1 and Student 6 after midnight by exchanging messages using the Board’s social medial platform (Google Chat).
During the 2018-2019 academic year, the Member engaged in inappropriate communications of a sexualized nature and/or used sexualized language in communications with Student 1, Student 4, and Student 6, using the Board’s social media platform, including but not limited to:

(a) telling Student 1, “I thought it was so you could get in her [Student 2’s] pants one last time”;

(b) telling Student 1, “YOU are the boy toy”;

(c) telling Student 1, “Just remember to wrap it […] [f]airly certain your mother would l[o]se it if she became a grandmother right now”;

(d) telling Student 1, “YOU WANT A LAST BOOTY CALL”;

(e) telling Student 1, “you can use it to chase other @ss and t*ts”;

(f) telling Student 1, “mental health = sexual health”

(g) telling Student 4, “For future reference, don’t put anything in your mouth that was in [Student 3’s] pants”;

(h) telling Student 6, “Not sure what time you guys are taking off tomorrow, but pretty sure you won’t be in last class [XXX] with me. […] And tomorrow’s discussion is ‘Does Size Matter?’”; and

(i) discussing students’ sexuality and/or romantic relationships with Student 1, Student 2, Student 4, and Student 6, including stating to Student 4 that Student 3 might want “more from [him] than friendship”.

During the 2018-2019 academic year, the Member engaged in inappropriate communications with Student 1, Student 5 and Student 6 using the Board’s social media platform, where she discussed fights that occurred between School students, made light of the fights, made disparaging comments about the students who participated in the fights and commented on which student she thought would win if they were to get into a fight.
During the 2018-2019 academic year, the Member engaged in inappropriate communications with Student 1, Student 4, Student 5 and Student 6, where she used the Board’s social media platform to make disparaging comments about students and School staff, including but not limited to:

(a) telling Student 1: “well, that says [Student 2’s] maturity level is rather low”;

(b) telling Student 1: “AND NO YOU CAN’T VAPE IN [M]Y VAN […] Student 4 and [another student] asked”;

(d) telling Student 1: “I spent the entire pd day yesterday with [two colleagues] […] They are negative. About everyone and everything. It suck[s] the life out of you, you know?”;

(e) telling Student 1: “Gak – sorry was muting one of the [XXX]’s who is a tad on the moron side”;

(f) telling Student 1, “did [another student] lose his blankie” and explaining “I was being sarcastic, they’re so immature they should have blankies with them”;

(g) telling Student 4 she had a conversation with her principal “all about anal sex and masturbation” because of a web link she provided to her class, that “IT WAS HORRIFYING to talk to [her principal] about it” and stating “[…] do you ever want to hear your boss say ‘masturbation’??! […] NEVER”;

(h) telling Student 5 “[one] of these days you’re going to drop kick [another student] and ain’t nobody going to be surprised but him”;

(i) telling Student 6: “[j]ust an FYI that it is noted by several adults that you seem to bear the brunt of anger when it comes to… ahhh… different linguistic type adults who may teach you”, “[n]ot that it helps you in class, but several of us have your back”;

(j) asking Student 6: “so are you ticked because of report cards or one of your numbskull classmates”;

(k) telling Student 6: “and I think he’s [Student 1] an idiot for letting what’s her face [Student 2] treat him like a human emotional punching bag”, “he [Student 1] needs to get some self respect – if someone treats you like sh*t, then why be around them?”;

During the 2018-2019 academic year, the Member used the Board’s social media platform to engage in inappropriate communications with students and shared private and/or confidential information, including but not limited to:

(a) Discussing a meeting with her administrator with Student 4;

(b) Sending Student 1 a photo of Student 2 without Student 2’s consent;

(d) Discussing with Student 1 her plan to bring up a student’s interactions with Student 2 with Student 2’s parents;

(e) Discussing with Student 1 a situation where one student told a student with [XXX] that student. The Member referred to the student who made the statement as a “[p]sychotic nut”; and

(f) Telling Student 1 whether Student 2 was online, was actively using the Board’s social media platform and/or when Student 2 last used the Board’s social media platform.

During the 2018-2019 academic year, the Member engaged in an inappropriate conversation with Student 1, using the Board’s social media platform, where she made the following joke about masturbation:

Member: “go focus ON YOU”
Student 1: “OK I will”
Member: “waaaaait”
Student 1: “Ya”
Member: “not in the bathroom by yourself!”
Student 1: “lol”
Member: “you need that energy for this evening [’s sporting event].”

During the 2018-2019 academic year, the Member arranged for and permitted Student 1 and Student 2 to meet approximately three to five times in her classroom, sometimes with the Member present but at other times alone and unsupervised, to facilitate a romantic relationship between Student 1 and Student 2.
On or about June 12, 2019, Student 3 approached the School’s Principal. Student 3 had obtained a screenshot of a comment made by the Member to Student 4 about Student 3’s possible sexual orientation. Board staff recovered and examined the Member’s Google Chat history and discovered that the Member engaged in inappropriate communications with students during the 2018-2019 academic year. The Board referred the communications to the Halton Children’s Aid Society (the “CAS”) for review.
On June 17, 2019, the Member was assigned to home duties while the CAS investigated.
On September 26, 2019, the Board received a letter from the CAS, advising that it had verified allegations of “electronic indicators of sexual abuse” due to the Member’s “sexually provocative comments made throughout her electronic conversations between her and one of her students”. The CAS also verified a code of “limited caregiving skills” due to the “poor judgment” demonstrated by the Member in her actions and communications with students. The CAS did not verify that Student 2 was at risk of emotional harm due to the Member’s actions. Attached as Appendix "B" is a copy of the CAS letter to the Board, dated September 26, 2019. Attached as Appendix “C” is a copy of the Eligibility Spectrum used by the CAS at the material time.
CAS staff interviewed Student 1 and Student 2 with respect to their interactions in the Member’s classroom. These students indicated that the Member was not always present in the classroom with them. Student 1 and Student 2 denied engaging in any sexual conduct in the Member’s classroom. Student 2 agreed with CAS staff that she and Student 1 “did not just talk” in the Member’s classroom.
The Board opened an investigation and reviewed the messages between the Member and Student 1, Student 2, Student 4, Student 5, and Student 6.
On January 9, 2020, Board staff met with the Member to share the results of the investigation. The Board determined that the Member “engaged in inappropriate conduct, including inappropriate conduct of a sexual nature, harmful to students.” Attached as Appendix “D” is the Board’s letter to the Member setting out the results of its investigation, dated January 9, 2020.
The Board terminated the Member’s employment on January 9, 2020. Attached as Appendix “E” is the Board’s letter to the Member setting out the findings of the CAS and Board investigations and terminating the Member’s employment.
The Member retired from the College on February 14, 2020.
The Member acknowledges that she did not follow the advice provided by the College in its updated professional advisory entitled “Maintaining Professionalism – Use of Electronic Communication and Social Media” updated on September 27, 2017. Attached as Appendix “F” is a copy of this professional advisory.
The Member acknowledges that she did not follow the advice provided by the College in its professional advisory entitled “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct” issued on September 27, 2002. Attached as Appendix “G” is a copy of this professional advisory.

PLEA OF NO CONTEST

By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1 to 22 above (the “Uncontested Facts”).
The Member acknowledges that paragraphs 6 to 12 of the Uncontested Facts constitute breaches of the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession, copies of which are attached as Appendix “H”.
The Member further acknowledges that paragraphs 6 to 12 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against her, being more particularly:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she released or disclosed information about a student to a person other than the student or if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

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

(g) She engaged in sexual misconduct as defined in section 1 of the Act.

By signing this document the Member states that:

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

(b) she understands that 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 can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) 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;

(f) she understands that any agreement between her and the College with respect to the penalty does not bind the Discipline Committee; and

(g) she understands and acknowledges that she is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained legal advice.

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 Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purposes 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.
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

7Having 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 22, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(6), 1(7), 1(15), 1(18) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 22 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, on multiple occasions, the Member engaged in inappropriate electronic communications with students on the Board’s social media platform. The Member’s messages to students included sexualized language and remarks, which constitute sexual misconduct.

9The Panel finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. In particular, the Member breached the ethical standards of “Respect” and “Trust”. The ethical standard of “Respect” requires members to honour human dignity, emotional wellness and cognitive development. The ethical standard of “Trust” provides that “[…] Members’ professional relationships with students […] are based on trust.” By making disparaging comments about students and School staff, the Member was disrespectful towards her students and colleagues. Moreover, by sharing private and confidential information regarding students, on the Board’s social media platform, the Member breached the trust which those students had placed in her. As such, the Member’s conduct fell below the standards of the profession.

10The Panel finds that the Member breached subsection 1(6) of Ontario Regulation 437/97. The Member used the Board’s social media platform to share inappropriate and/ or confidential information in online conversations with students. Among other things, the Member sent messages to Student 1 about a classroom situation where one student told another student with [XXX] and shared photos without the depicted student’s knowledge or consent. The Panel finds that by doing so, the Member inappropriately released or disclosed information about students to persons other than the students or the students’ parents or guardians, in violation of this subsection.

11The Panel finds that the Member breached subsection 1(7) of Ontario Regulation 437/97. On multiple occasions, the Member made inappropriate comments about students, including telling Student 1 that Student 2’s maturity level was low, making remarks about Student 2 being a “slut”, referring to a student as a “moron”, making comments about Student 6’s classmates being “numbskull classmates”. The Panel finds that the Member’s comments were disparaging and offensive, and they amount to verbal abuse by the Member.

12The Panel finds that the Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. Section 264(1)(b) provides that it is the duty of a teacher to encourage students in the pursuit of learning and section 264(1)(c) is commonly understood to mean that teachers must act as positive role models. By permitting Student 1 and Student 2 to meet on several occasions in her classroom, at times unsupervised, to facilitate a romantic relationship between them, the Member distracted her students from their education. Moreover, by repeatedly making demeaning comments about students and making sexualized comments to students, the Member modelled disrespectful and immoral behaviour. Furthermore, the Member condoned aggressive student behaviour by discussing student fights, making light of physical fighting and commenting on which student would win in the event of a fight. The Member’s conduct was therefore at odds with her duties as a teacher.

13The Panel finds that the Member breached subsection 1(18) of Ontario Regulation 437/97 by engaging in conduct that was disgraceful, dishonourable or unprofessional. It is immoral and completely unacceptable for a teacher to make sexual remarks to students. The Member’s behaviour brings into question her moral fitness to practice the profession and her ability to discharge her professional duties. Moreover, by repeatedly engaging in other inappropriate communications with students on the Board’s social media platform, as described above, the Member showed a concerning lack of professional judgment. Members of the teaching profession must always maintain appropriate professional boundaries with students, including on social media platforms. The Member’s conduct fell below these expectations, and her behaviour can be properly characterized as disgraceful, dishonourable and unprofessional.

14The Panel finds that the Member’s inappropriate conduct 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 eroded when members of the profession fail to maintain appropriate professional boundaries and make sexual remarks in their communications to students.

15The Panel finds that the Member’s conduct constitutes sexual misconduct as defined in section 1 of the Act. “Sexual misconduct” is defined in the Act as:

inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,

(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks,

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.

The Member used sexualized language and made multiple comments of a sexual nature to students on the Board’s social media platform. The comments included telling Student 1, “YOU WANT A LAST BOOTY CALL”, telling Student 4, “For future reference, don’t put anything in your mouth that was in [Student 3’s] pants and telling Student 6, “[…] And tomorrow’s discussion is ‘Does Size Matter?” The Member also joked with Student 1 about masturbation and wrote to Student 4 about a conversation that she had with her principal about anal sex and masturbation. By engaging in such conduct, the Member exposed her students to behaviour or remarks of a sexual nature. The Panel finds that a reasonable person would expect that a teacher using sexualized language or making sexual comments to students online could cause distress to students or be detrimental to students’ physical or mental well-being. It is completely inappropriate for teachers to make remarks of a sexual nature to students and by doing so, the Panel finds that the Member engaged in sexual misconduct.

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 22, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter; and
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register:

(a) prior to returning to teaching or to any position for which a Certificate of Qualification and Registration is required, 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 the appropriate use of social media, subject to the following conditions;

(i) the Member will provide to a course practitioner 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 (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 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 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.

G. REASONS FOR PENALTY DECISION

17The 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 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. Germundson, 2017 ONOCT 31, Ontario College of Teachers v. Lepage, 2017 ONOCT 29, Ontario College of Teachers v. Patry, 2017 ONOCT 73, Ontario College of Teachers v. Riley, 2019 ONOCT 61, Ontario College of Teachers v. Bonofiglio, 2020 ONOCT 163 and Ontario College of Teachers v. Hacker (11 May 2021).

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the repeated nature of the inappropriate communications which occurred during one academic year and the fact that several students were involved. In terms of mitigating factors, the Member did not contest her misconduct, saving the time and expense of a contested hearing, expressed sincere remorse (through her Counsel) and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s repeated inappropriate electronic communications with students warrant a reprimand. Teachers must use social media platforms appropriately and must always maintain appropriate professional boundaries with students. The Member’s misconduct included making several disparaging comments to students as well as exposing students to comments of a sexual nature, on the Board’s social media platform. 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.

20Given the nature and severity of the Member’s conduct, the Panel finds that a six-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 August 6, 2021, which is 15 days after the Panel’s Oral Decision and Order.

21The Panel finds that the course of instruction regarding professional boundaries and appropriate use of 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.

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

Date: July 29, 2021

Jonathan Rose Chair, Discipline Panel

Natasha Feghali, OCT Member, Discipline Panel

Kevin McCarthy Member, Discipline Panel