Ontario College of Teachers v. Lyons, 2021 ONOCT 83

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Lyons 2021 ONOCT 83 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 Dason Kent Lyons, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DASON KENT LYONS (REGISTRATION #178964)

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

HEARD: July 22, 2021

COUNSEL: Kathryn McChesney and Charlotte-Anne Malischewski, for the Ontario College of Teachers Patricia D’Heureux, for Dason Kent Lyons Rebecca Durcan, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on 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.

2Dason Kent Lyons (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated July 31, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Dason Kent Lyons 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

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

(f) 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);

(g) 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);²

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Dason Kent Lyons 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 Durham District School Board (the “Board”) as a Teacher.

3. The Member notified the Ontario College of Teachers of his retirement effective June 26, 2020.

4. At all material times, Student 1 was a male student at [XXX]in Whitby, Ontario.

5. At all material times, Student 2 was a male student at [XXX] School [XXX] in Oshawa, Ontario.

6. At all material times, Student 3 was a male student at [XXX] School [XXX] in Oshawa, Ontario.

7. At all material times Student 4 was a male student at [XXX].

8. At all material times, Student 5 was a male Student at [XXX] School [XXX] in Ajax, Ontario.

Conduct During the 2010 to 2011 Academic Year

9. During the 2010 to 2011 academic year, the Member would throw a football at students in his class to get their attention.

10. During the 2010 to 2011 academic year, on one occasion the Member walked behind Student 1 and hit him lightly on the back of the head with a rolled up workbook.

11. As a result of this conduct, the Board issued a discipline letter to the Member which included a direction that he use “appropriate discipline practices”. Attached hereto and marked as Exhibit “B” is a copy of the June 17, 2011 letter.

Conduct During 2012 to 2013 Academic Year

12. On October 2, 2012, after Student 2 refused to comply with his and an Educational Assistant’s verbal directions for him to get down from the top of his desk, where he was engaging in disruptive and unsafe behavior, the Member took Student 2 by the arms, and put him in his chair, leaving marks on Student 2’s arms. The Member then picked up the chair and with Student 2 sitting on it and moved it away from the desk area. While leaning over Student 2, holding the sides of the chair and with his face approximately 6-10 inches away from Student 2’s face, the Member yelled at Student 2 that he was going to sit at his desk, stay in his seat and not get up, or words to that effect. This incident had a negative impact on Student 2.

13. The Durham Children’s Aid Society investigated the interaction with Student 2 and verified that the Member used an excessive level of physical force and verbal direction. Attached hereto and marked as Exhibit “C” is a copy of the December 13, 2012 letter from the Durham Children’s Aid Society.

14. As a result of his conduct toward Student 2 described at paragraph 13, the Board issued a discipline letter to the Member, which included a caution to him about shouting and physically touching students when redirecting them. Attached hereto and marked as Exhibit “D” is a copy of the December 20, 2012 Board discipline letter.

15. During the 2012 to 2013 academic year, the Member grabbed or held Student 3’s arm when Student 3 wasn’t listening and Student 3 attempted to leave the classroom.

16. During the 2012 to 2013 academic year, the Member hit Student 4’s desk with a broken ruler.

17. The Durham Children’s Aid Society did not verify any child protection concerns in relation to the conduct described at paragraphs 15 and 16 above. A copy of the Society’s outcome letter is attached hereto and marked as Exhibit “E”.

18. As a result of the conduct described at paragraphs 15 and 16, the Board suspended the Member without pay for 5 days and instructed him to take two training courses. Attached hereto and marked as Exhibit “F” is a copy of the September 3, 2013 Board discipline letter.

Conduct During the 2015 to 2016 Academic Year

19. During the 2015 to 2016 academic year, Student 5 was sent to the hall due to his inappropriate behaviour during a school assembly. The Member followed Student 5 to the hall and raised his voice at him regarding his behaviour. The Member then moved in close proximity to Student 5, causing the student to back up against the wall and the Member touched Student 5 on the face with the Member’s knuckle.

20. As a result of his conduct toward Student 5, the Board issued a discipline letter to the Member, suspended the Member without pay for five days and required him to complete a boundaries training program. The discipline letter notes that the interaction in question had a sincere impact on the student. Attached hereto and marked as Exhibit “G” is a copy of the September 13, 2016 letter.

21. If the Member were to testify, he would report that he did not at any point intend harm toward any of the students at issue in the incidents described herein above.

22. The Member has no prior discipline or complaints against him at the College.

PLEA OF NO CONTEST

23. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-22 above (the “Uncontested Facts”).

24. 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), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).

25. 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.

26. 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.

27. In light of the Uncontested Facts and circumstances, 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 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 sought the Panel’s permission to withdraw the subsection 1(5) allegation because proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted the request.

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(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).

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 him. He 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 made inappropriate physical contact with students. He also yelled and raised his voice at students.

9The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. For instance, in an attempt to manage Student 2’s disruptive behaviour, the Member put his face approximately 6-10 inches away from Student 2’s face and yelled at him to go sit at his desk, stay in his seat and not get up. This incident had a negative impact on Student 2. The Member also, raised his voice at Student 5 regarding the latter’s inappropriate behaviour. It is inappropriate for teachers to yell and raise at their voice at students, even in the face of challenging student behaviour. Teachers must always be professional in their dealings with students, which the Member failed to do in this case. As such, the Member’s conduct amounts to verbal abuse.

10The Member breached subsection 1(7.1) of Ontario Regulation 437/97 by repeatedly making inappropriate physical contact with students. The Member hit Student 1 on the head with a rolled-up workbook. Furthermore, when Student 2 was being disruptive in class, the Member took Student 2 by the arms and put him in his chair, leaving marks on Student 2’s arms. He then picked up the chair with Student 2 sitting on it and moved it away from the desk area. The Member’s conduct negatively affected Student 2. Moreover, the Member grabbed Student 3’s arm when Student 3 was not listening. In addition, the Member moved in close proximity to Student 5, causing the student to back up against the wall and he touched Student 5 on the face with his knuckle. The Panel finds that Member’s conduct constitutes physical abuse of students. Teachers must ensure that schools are safe spaces for students. They must use appropriate discipline methods that do not involve the unnecessary use of physical force when addressing student misbehaviour.

11The Member psychologically or emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member’s physically abusive behaviour towards his students had a negative impact on some of them. Moreover, it can reasonably be inferred that yelling at students and using unnecessary physical force when attempting to manage their misbehaviour would have a negative emotional impact on them. Given the power imbalance that existed between the Member and his students, it was emotionally abusive for the Member to repeatedly engage in such aggressive behaviour towards his students. The Member’s conduct therefore amounts to psychological or emotional abuse of students.

12The Panel finds that the Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the professional and ethical standards for the teaching profession. In particular, the Member breached the ethical standards of “Care” and “Respect” and the standard of practice of “Leadership in Learning Communities”. The standard of “Care” requires members to demonstrate a commitment to students’ well-being and learning through positive influence, professional judgment, and empathy in practice. The standard of “Respect” requires members to honour human dignity, emotional wellness and cognitive development. The standard of “Leadership in Learning Communities” requires members to promote and participate in the collaboration of safe and supportive learning communities. The Member was physically abusive towards students. He also engaged in aggressive behaviour towards several students which included throwing a football at his students to get their attention, hitting Student 4’s desk with a ruler, and yelling or raising his voice at students. By doing so, the Member disregarded his students’ well-being and was disrespectful towards his students. Engaging in physically abusive, aggressive, and disrespectful behaviour creates a fearful atmosphere and is incompatible with the expectation that teachers will promote a safe and supportive learning environment. As such, the Member’s conduct falls below the professional and ethical standards of the teaching profession.

13The 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 repeatedly engaging in physically abusive and aggressive behaviour towards students, the Member discouraged students from learning. Furthermore, by displaying such conduct in front of students, the Member failed to behave as a positive role model in his school community. In these ways, the Member failed to fulfil the duties of a teacher.

14The Member committed acts that would reasonably be regarded by members as unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Unprofessional conduct includes conduct that demonstrates a disregard for a member’s professional obligations and a failure to demonstrate sound professional judgment. The Member demonstrated a concerning lack of professional judgment by repeatedly making inappropriate physical contact with students and yelling at students, instead of using more appropriate discipline and classroom management methods. Such unprofessional behaviour has no place in a learning environment. Members of the teaching profession are expected to behave professionally with students, even when faced with challenging student behaviour. The Member repeatedly failed to meet his professional obligations.

15The 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. Members who engage in aggressive and physically abusive behaviour towards students undermine the reputation of the teaching profession and violate the trust that parents, students, and the public place in teachers.

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:

1. 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 shall 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 five months commencing on the 15^th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter.

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 classroom management 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 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

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. Dayfoot, 2018 ONOCT 73, Ontario College of Teachers v. MacAdam, 2019 ONOCT 3, Ontario College of Teachers v. Armstrong, 2019 ONOCT 48 (finding) and 2019 ONOCT 49 (penalty), Ontario College of Teachers v. Antonenko, 2019 ONOCT 79 and Ontario College of Teachers v. Lim, 2020 ONOCT 184.

18The Panel considered the Member’s circumstances in comparison to the cases provided. There are many aggravating factors in this case. First, the Member’s physically abusive behaviour towards students occurred repeatedly despite warnings and disciplinary measures imposed by his employer. Second, the Member’s conduct involved several students over many years. Finally, the Member’s conduct caused emotional harm to students. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing, and he has not been the subject of College 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 verbally and physically abusive conduct, despite warnings from the Board, warrants a reprimand. Teachers are expected to provide a safe and supportive learning environment for students. They must also remain professional when managing challenging student behaviour. 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 five-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, should he ever return to the teaching profession, 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 recognizes that the Member was previously instructed by his employer to complete additional training or professional development in the area of classroom and behaviour management to address his concerning behaviour (see Exhibit 2 at Tab F). Given the repeated nature of his misconduct and the parties’ Joint Submission on Penalty, the Panel finds that a further course of instruction regarding classroom management will assist in the rehabilitation of the Member and will help to ensure the physical and emotional safety of students, should the Member ever return to the teaching profession. The coursework will remind the Member of his obligations as a teacher and will help him 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.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation narrowed to unprofessional acts only.