Ontario College of Teachers v. Feldman, 2021 ONOCT 8

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Feldman 2021 ONOCT 08 Date: 2021-03-04

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 Nolan Stuart Feldman, a member of the Ontario College of Teachers.

Between:

Ontario College of Teachers

– and –

Nolan Stuart Feldman (Registration #526066)

Panel: Diane Ballantyne, OCT, Chair John Hamilton, OCT Jonathan Rose

Heard: March 2, 2021

Counsel: Vincent DeMarco and Danielle Miller, for the Ontario College of Teachers No one appearing for Nolan Stuart Feldman Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on March 2, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Nolan Stuart Feldman (the “Member”) did not attend the hearing and did not have 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 18, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Nolan Stuart Feldman is guilty of professional misconduct as defined in the Act in that:

(a) he signed or issued, in his professional capacity, a document that he knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);¹

(b) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws (Professional and Ethical Standards for the teaching profession), contrary to Ontario Regulation 437/97, subsection 1(14);

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof, as amended, or the regulations made under the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) he committed acts or omissions 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);

(e) he 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:

1. Nolan Stuart Feldman 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 York Region District School Board (the “Board”) as a teacher at Bayview Fairways Public School in Thornhill, Ontario.

3. On December 1, 2017, the Member supplied information from his physician indicating that he was suffering from [XXX]. In late 2017, the Member commenced a paid sick leave from his duties with the Board. Attached hereto and marked as Exhibit “B” is a copy of the Member’s Functional Abilities Report dated November 30, 2017.

4. On February 22, 2018, the Member supplied additional information from his treating [XXX] which stated that the Member was continuing to suffer from [XXX] and [XXX] symptoms. Attached hereto and marked as Exhibit “C” is a copy of the Functional Abilities Report provided to the Board on February 22, 2018 which states that the Member is functionally unable to work and will be unable to return to work for the next twelve weeks.

5. In fact, beginning in mid-February, the Member, who had a background in the food service industry, was in the process of acquiring an ownership interest in a Thornhill fast food restaurant. He had a plan at that time to leave his position at the Board and return to a restaurant career. While engaging in this process, the Member did not believe that his actions constituted professional misconduct. He did not inform the Board of his plans at the time he commenced his sick leave in December 2017, at the time he requested an extension of the sick leave in February 2018, or at any time thereafter.

6. On or about March 1, 2018, the Board received information that the Member had been observed working at a restaurant in Thornhill, Ontario while the Member was receiving sick leave benefits from the Board.

7. On March 15, 2018, the Board retained an investigation firm to observe the Member and determine if the reports that the Member was working despite being on sick leave from the Board were true.

8. The investigation firm conducted surveillance of the Member between March 15, 2018 and March 22, 2018. During the surveillance period, the investigator observed the Member attend a restaurant in Thornhill, Ontario on three different occasions. On March 16, 2018, the Member was present at the restaurant for 9 hours and 44 minutes. On March 20, 2018, the Member was present at the restaurant for 2 hours and 20 minutes. On March 22, 2018 the Member was present at the restaurant for 4 hours and 34 minutes.

9. While the Member was at the restaurant, the investigator observed the Member conversing with restaurant employees and customers, seating customers, clearing tables, and performing tasks behind the counter. On one occasion, the firm also observed the Member removing two large boxes from the restaurant and loading them into the rear of his vehicle.

10. On March 21, 2018, the Member attended what was believed to be a food service trade show. The investigator observed the Member entering the Toronto Congress Centre where signage was posted saying “Gordon Food Service Show”.

11. The investigator also conducted an online search of the Member’s presence on social media. One Facebook message to the Member, dated February 28, 2018, stated, “Good luck with the new venture.”

12. Upon receiving the investigation firm’s report, the Board suspected that the Member was engaged in employment at a Thornhill, Ontario restaurant at a time when the Member was on a leave of absence from the Board and receiving sick leave salary and benefits from the Board.

13. The Board requested the Member to attend a meeting on March 29, 2018. Attached hereto and marked as Exhibit “D” is a copy of the Board’s letter dated March 26, 2018 advising the Member of the March 29, 2018 meeting.

14. The Member informed the Board that he was unable to attend the meeting scheduled for March 29, 2018. On March 28, 2018, after discussion with the Member, the Board wrote to the Member informing him that the meeting had been rescheduled to April 4, 2018. Attached hereto and marked as Exhibit “E” are copies of the Board’s letters dated March 28, 2018 and April 3, 2018 notifying the Member of the April 4, 2018 meeting. The Member did not attend the April 4, 2018 meeting.

15. According to the Functional Abilities report dated November 30, 2017, the Member had required accommodations for meetings – that he needed to be informed of meetings by email 24 hours in advance, that he needed to be given an agenda prior to meetings, and that he needed a third party to attend with him at meetings. Attached hereto and marked as Exhibit “F” is a copy of an email from the Member’s disability case manager to the Board dated December 5, 2017, summarizing the recommended accommodations.

16. In the Board’s view, it had complied with the recommended accommodations by providing the Member with written notice, an agenda, and the option of federation representation. In the Member’s view, the agenda provided by the Board was not sufficiently detailed. If the Member were to testify, he would say that he had informed his federation representative that he was prepared to meet with the Board representatives once the accommodations had been satisfied and was under the impression that the federation representative would be scheduling a new date for the meeting after April 4, 2018.

17. On April 12, 2018, the Board advised the Member that, in light of his failure to attend the scheduled meetings and participate in the Board’s investigative process, the Member’s leave would be without pay, effective April 13, 2018. The Board also advised that it would complete its investigation and make its findings based on information gathered during its investigation. Attached hereto and marked as Exhibit “G” is a copy of the Board’s letter to the Member dated April 12, 2018.

18. On April 13, 2018, the Member resigned from the Board, effective April 30, 2018. Attached hereto and marked as Exhibit “H” is a copy of Member’s letter of resignation from the Board dated April 13, 2018.

19. Between February and April of 2018 the Member was receiving sick leave pay and benefits from his position at the Board while also receiving employment income for his work at the Thornhill restaurant he purchased.

GUILTY PLEA

20. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-19 above (the “Admitted Facts”).

21. The Member hereby acknowledges that the Admitted Facts constitute conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(14), 1(15), 1(18) and 1(19).

22. 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 Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) 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;

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

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

23. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member jointly submit that the Discipline Committee find the Member guilty of professional misconduct.

D. Decision

6Counsel 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(12) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as a by-product of negotiations in the adversarial process that resulted in the Agreed Statement of Facts and Guilty Plea. The Panel granted the request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on March 2, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 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 19 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.

9The Admitted Facts demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws (Professional and Ethical Standards for the teaching profession), contrary to Ontario Regulation 437/97, subsection 1(14). In particular, the Member breached the ethical standards of “trust” and “integrity”. The ethical standard of “trust” embodies “fairness, openness and honesty.” The ethical standard of “integrity” provides that members are expected to conduct themselves with “honesty, reliability and moral action.” The Member did the opposite. He neglected to advise his Board that he intended to use his medical leave to work towards acquiring an ownership interest in a restaurant, to spend time working in that restaurant, and to attend a food service trade show.

10The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that teachers must demonstrate the highest regard for a number of virtues including truth, justice and loyalty. By neglecting to inform his Board regarding his plan to return to a career in the restaurant industry during his medical leave, the Member breached this provision. The Member’s dishonest conduct in this case was at odds with his obligations as a member of the profession.

11The Panel finds that the Member’s actions would reasonably be regarded by members as disgraceful, dishonourable, and unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The Member misappropriated medical leave by working in the restaurant industry while he was off work but still receiving a salary and benefits from the Board. It is improper for members of the profession to engage in this type of misleading conduct. The Member’s misconduct involved dishonesty towards his employer, and is therefore properly characterized as disgraceful, dishonourable, and unprofessional.

12Similarly, the Panel finds that the Member’s deceitful and self-serving conduct is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97 in that it undermined the reputation of the teaching profession.

F. Penalty Decision

13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 2, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a written reprimand 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 Certificate of Qualification and Registration of the Member for a period of two 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. If the Oral Decision and Order is rendered between May 1 and August 1, the suspension will commence on September 1;

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

(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 his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, 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 30 days of his 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.

G. Reasons for Penalty Decision

14The 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. Johnson, 2019 ONOCT 23, Ontario College of Teachers v. Roloson, 2018 ONOCT 60, and Ontario College of Teachers v. Deault, 2020 ONOCT 187.

15The Panel considered the Member’s circumstances in comparison to the cases provided. While the Member’s misconduct involved serious dishonesty, there are two mitigating factors in this case: the Member admitted his misconduct, saving the time and expense of a contested hearing and he has not been the subject of discipline proceedings in the past. As such, the Panel accepts that the penalty proposed by the parties is reasonable.

16The Panel finds that the Member’s conduct warrants a reprimand from his peers. The Member’s use of his medical leave to engage in an economic venture in the restaurant industry is concerning and indicative of poor professional judgment. 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.

17Given the nature and severity of the Member’s conduct, the Panel finds that a two-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 two-month suspension is within the appropriate range for the Member’s misconduct. Although the suspension’s impact as a specific deterrent for the Member may be minimal given that he is not currently teaching, the suspension will nevertheless serve as 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 March 17, 2021, which is 15 days after the Panel’s Oral Decision and Order.

18The Panel finds that the course of instruction regarding professional ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future leave requests from his employers, and in his interactions with his employers more generally.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.