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
Michael David Sloan, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
MICHAEL DAVID SLOAN (REGISTRATION #476479)
PANEL: Stéphane Vallée, OCT, Chair Diane Ballantyne, OCT Richard Filion
HEARD: July 15, 2020 and June 23, 2021
Jordan Glick, for the Ontario College of Teachers Stuart Weir, for Michael David Sloan 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 matter was heard before a panel of the Discipline Committee (the “Panel”) on July 15, 2020 and June 23, 2021 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3 and rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee this matter proceeded by way of an electronic hearing.
2Michael David Sloan (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 February 3, 2020 (Exhibit 1) are as follows:
IT IS ALLEGED that Michael David Sloan is guilty of professional misconduct as defined in the Act in that:
(a) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(b) 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);
(c) 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);
(d) 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:
Michael David Sloan is a member of the Ontario College of Teachers. Attached hereto and marked 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 District School Board Ontario North East (the “Board”) as a teacher at [XXX] School (the “School”) in Timmins, Ontario.
At all material times, Student 1 [XXX] and Student 2 [XXX] were male students of the Board. While Student 1 and Student 2 were not students at the School at the times relevant to the allegations, they were previously the Member’s students at the School.
In June 2018 and July 2018, the Member exchanged text messages with Student 1 wherein he:
(a) Offered and agreed to buy Student 1 alcohol and marijuana; and,
(b) Made plans with Student 1 to meet to drink alcohol and smoke marijuana together.
- On more than one occasion in 2018, the Member:
(a) Attended the home of Student 1 and Student 2 without parental knowledge, permission, or supervision;
(b) Purchased alcohol and marijuana for Student 1 and Student 2;
(c) Purchased marijuana from Student 1 and Student 2;
(d) Smoked marijuana with Student 1 and Student 2; and,
(e) Drank alcohol with Student 1 and Student 2.
On February 21, 2019, the Member was terminated from his employment with the Board as a result of the conduct described above.
The Member is not currently working as a teacher or employed in a position requiring a Certificate of Qualification and Registration.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-7 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 him being more particularly breaches of Ontario Regulation 437/97 subsections 1(14), 1(15), 1(18), and 1(19).
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 with respect to the penalty proposed does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and 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
6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on July 15, 2020, 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
7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 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.
8The Member failed to comply with the Act, or regulations, or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member did not adhere to College Bylaw 32.02, which outlines the Ethical Standards of the Teaching Profession. The standard of “Care” requires members to express their commitment to students’ well being and learning through positive influence and professional judgment. By purchasing alcohol and marijuana for and from students, and by consuming alcohol and marijuana with those students, the Member failed to act as a positive influence for his students and to ensure their well being. The standard of “Trust” embodies “fairness, openness, and honesty” in professional relationships with students and parents. The Member failed to exhibit the standard of “Trust” by engaging young students in social activities without the knowledge or permission of their parents.
9The 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. Among other things, teachers are required to encourage students in pursuit of learning, model a broad range of values, and set a proper example for students. The fact that the Member facilitated and participated in illegal conduct with students was contrary to these requirements.
10The Member contravened subsection 1(18) of Ontario Regulation 437/97 by his disgraceful, dishonourable, and unprofessional conduct. The Member demonstrated a severe lack of professional judgment when he engaged in alcohol and drug use with young students at their home without the knowledge of their parents. Members are expected to demonstrate exemplary judgment in their dealings with students. The Member’s behaviour fell well short of this expectation.
11Finally, the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the profession are expected to set an example for students and to uphold the law in all their dealings with students. When members facilitate underage students’ alcohol and drug use, as the Member did in this case, the public loses faith in the teaching profession, whose members are responsible for the well-being of students.
F. PARTIES’ SUBMISSIONs ON PENALTY
12The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel on July 15, 2020. The Parties jointly submitted that the appropriate penalty to be imposed would be that, prior to returning to teaching, the Member should appear before the Committee to receive a reprimand; that the Member’s certificate be suspended for a period of three months; and that the Member enroll in and complete a course of instruction on boundaries with students prior to commencing any teaching position in Ontario.
13After hearing initial submissions from the parties, the Panel communicated that it was considering rejecting the Joint Submission on Penalty as it did not adequately address the principles of specific and general deterrence. Additionally, the Panel was concerned that the caselaw provided was not helpful in creating a range for an appropriate penalty. In response, the parties requested an adjournment to make additional submissions regarding the proposed penalty. The penalty phase of this hearing was adjourned until June 23, 2021.
14On June 23, 2021, the parties returned and submitted an amendment to the second element of the Joint Submission on Penalty. The parties submitted that, following a further review of relevant case law and additional negotiations, they have agreed that the period of suspension of the Member’s certificate should be eight months rather than three months. In support of this submission, the parties presented the Panel with a recent case regarding joint submissions generally – Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (“Bradley”), as well as an additional case to demonstrate the range of appropriate penalties in this matter – Ontario College of Teachers v. Champion, 2015 ONOCT 10 (“Champion”). These cases will be dealt with in more detail in the Panel’s reasons for penalty below.
15The Parties also made additional submissions regarding joint submissions broadly. The Parties submitted that the law allows joint submissions to be rejected only in the rarest of cases, to ensure that members and the public more broadly will maintain confidence in the administration of the discipline process. According to the parties, if joint submissions were routinely rejected, members would be hesitant to enter into resolution discussions with the College, and the College would have to spend significant resources hearing a large number of contested cases. The parties jointly submitted that accepting this amended joint submission would not bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.
16After the conclusion of the oral hearing, the Panel received additional, joint submissions from the parties on June 24, 2021, requesting that the Panel make the following amendments to the Joint Submission on Penalty (Exhibit 3):
Removing the words “If the Oral Decision and Order is rendered between May 1 and August 1, the Suspension will commence on September 1”; and
Amending paragraph 3 by removing the words “and the fact of such terms, conditions, or limitations is to be recorded on the Register until such time as they are fulfilled.” The parties jointly requested this amendment to reflect legislative changes to the Act that prevent the removal from the Register of terms, conditions or limitations imposed by the Discipline Committee.1
G. PENALTY DECISION
17In an oral decision rendered on June 23, 2021, the Panel accepted the parties’ amended Joint Submission on Penalty and made the following order:
Prior to commencing any teaching position in Ontario (including in a private school) or any position for which a Certificate of Qualification and Registration is required, the Member is directed to appear before the Discipline Committee electronically to receive a reprimand, on a date to be scheduled with the Hearings Office, and the fact that the reprimand has been ordered and/or administered 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 eight months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;2
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:3
(a) prior to commencing any teaching position in Ontario (including in a private school) or any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction covering boundaries with students, pre-approved by the Registrar, subject to the following conditions:
(i) the Member shall provide to a course practitioner approved by the Registrar, a copy of the Agreed Statements of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall 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; and
(b) within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a written certificate or 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
(1) The Panel’s Concerns with the Initial Joint Submission on Penalty
18The Panel had two main concerns with the parties’ initial joint submission on penalty. First, the Panel was concerned that a penalty consisting of a reprimand, a short suspension and coursework after the Member had committed professional misconduct by facilitating the drug and alcohol use of his very young students did not adequately address the principles of specific and general deterrence. The Panel felt that this penalty would undermine public confidence in the ability of the Discipline Committee to regulate the profession in the public interest. The Panel was concerned that the proposed penalty did not appropriately address the severity of the Member’s misconduct, and in particular his gross violation of trust and his failure to adhere to a commitment to keep his students safe.
19Second, the Panel was concerned that the case law initially presented by the parties included cases that were too dissimilar to this case, had significant mitigating factors that were not present in this case, and did not demonstrate an appropriate range of penalty for misconduct of this nature. The Panel thus requested additional case law and submissions from the parties.
(2) The Case Law
20The Panel closely considered the cases presented by the parties at first day of the hearing: Ontario College of Teachers v. Boote, 2018 ONOCT 45 (“Boote”) and Ontario College of Teachers v. Gagnon, 2009 ONOCT 19 (“Gagnon”). In Boote, Ms. Boote purchased alcohol for students that were under her supervision during a field trip. She also drank alcohol with her students. The penalty imposed was a reprimand, a two-month suspension, and coursework regarding the ethical standards and maintaining appropriate boundaries. In Gagnon, Mr. Gagnon consumed alcohol while on a field trip and he failed to appropriately supervise his students who had snuck out of their room and purchased alcohol while under his supervision. In that case, Mr. Gagnon also failed to investigate an altercation between two of his students. The penalty imposed in Gagnon was a reprimand, a three-month suspension, treatment for alcohol abuse, and coursework regarding boundary violations.
21The Panel finds that there are two significant factors that differentiate the Member’s case from Boote and Gagnon. First, Boote and Gagnon involved students who were in the upper years of high school, while this case involves students who were [XXX] and [XXX] years old. Second, Boote and Gagnon involved a single incident of misconduct during a field trip, whereas the Member’s case involved numerous instances of inappropriate conduct over months. The Panel finds that both Boote and Gagnon represent the very low end of the range of misconduct of this nature and were not helpful in assessing the appropriate penalty for the Member.
22In additional submissions on June 23, 2021, the parties provided the panel with the Championcase. In Champion, Ms. Champion sent inappropriate text messages of a sexual nature to a student, contrary to the wishes of that student’s parents. Additionally, she sent inappropriate text messages to another student, met up with that student, purchased alcohol for that student, watched the student smoke marijuana, and watched the student leave by boat, presumably inebriated. The panel in Championordered a reprimand, a nine-month suspension, and coursework regarding appropriate boundaries.
23The Panel finds that Champion was helpful in showing the appropriate penalty in cases where there are serious breaches of trust and numerous inappropriate communications with students. Overall, the Panel found Champion to be a much more fitting precedent to the Member’s situation than Boote and Gagnon.
(3) The Aggravating and Mitigating Factors
24The Panel carefully weighed the aggravating and mitigating circumstances of this case, as these factors inform the appropriate penalty and, ultimately, the public interest test for accepting or rejecting a joint submission.
25There are numerous aggravating factors in this case, of which the Panel will highlight three. First, the Member exhibited a profound breach of trust by texting students and attending their homes without the knowledge of their parents. Second, the students in this case were very young – they were [XXX] and [XXX] years old, unlike the students in the Boote and Gagnon cases who were of upper-year high school age. Third, the Member committed numerous instances of misconduct involving two students.
26The Panel recognizes that there are significant mitigating factors in this case as well. Most importantly, the Member admitted his misconduct very early in the discipline process, saving the resources required to hold a contested hearing. Additionally, the Member has expressed remorse and he has not been the subject of discipline proceedings prior to or following this conduct at issue.
(4) The Test Regarding Joint Submissions
27As emphasised by the parties, the Panel must give joint submissions a high degree of deference. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’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. In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 34, the Supreme Court of Canada explained the public interest test for rejecting joint submissions in the following manner:
[A] joint submission should not be rejected lightly… Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason ….
28In Bradley, the Divisional court reaffirmed that “the public interest test in Anthony-Cook applies to disciplinary bodies. Any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected.”
(5) The Panel Accepts the Amended Joint Submission on Penalty
29The Committee’s concerns regarding the parties’ initial joint submission were alleviated after close consideration of the Championcase. The Panel recognizes that, in addition to the high threshold to be applied to joint submissions, the public interest and the repute of the administration of the discipline process is served by accepting joint submissions. The Panel does not find that the amended joint submission is so unhinged from the circumstances of the case that it must be rejected. The Panel therefore accepts the amended penalty jointly proposed by the parties. The Panel finds that the penalty proposed in the amended Joint Submission on Penalty, as amended by the parties on June 24, 2021, is proportionate to the misconduct committed by the Member and falls within a range of acceptable outcomes.
30The Panel finds that the Member’s misconduct warrants a reprimand by his peers. The reprimand will allow the Panel to directly address its concerns with the Member and 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. As part of their joint submission, the parties advised the Panel that the Member is not currently teaching and requested that the delivery of the reprimand be delayed until the Member chooses to return to teaching. This order as to the timing of the reprimand had previously been made in Ontario College of Teachers v. French, 2016 ONOCT 16 (“French”), where a panel of the Committee ruled that:
… it would be more appropriate for the Member to receive his reprimand prior to commencing or returning to any position requiring a Certificate of Qualification and Registration. The oral reprimand will serve as a specific deterrent, but given that the Member is currently retired from the teaching profession, it is appropriate to defer the delivery of the reprimand until such time as the Member intends to return to teaching. The Committee finds that an oral reprimand delivered closer to the Member’s return to teaching would be more effective, as it would provide him with a timely reminder of the Committee’s expectations, before he re-engages with students and colleagues.
The parties submitted that the justification for the request of the delayed reprimand in this case is the same as the panel’s justification for ordering such a reprimand in French. The Panel accepts this reasoning and orders that the reprimand be delivered prior to the Member commencing any teaching position in Ontario (including in a private school) or any position for which a Certificate of Qualification and Registration is required.
31Given the nature and severity of the Member’s conduct, the Panel finds that an eight-month suspension is reasonable and appropriate. While no two cases are exactly alike, the misconduct in the case law submitted by the parties is of a similar underlying nature to the Member’s. The cases presented confirm that the appropriate length of suspension for misconduct of this nature is between two and nine months. Given the breach of trust and the disregard for students’ well-being exhibited by the Member, an eight-month suspension, which is on the higher end of the range, is appropriate in this case. 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 committed is unacceptable. In accordance with the parties’ joint submission, the suspension begins on July 9, 2021.
32The Panel finds that the course of instruction regarding boundaries with students will assist in the rehabilitation of the Member. The coursework is intended to remind the Member of his obligations as a teacher and will help him to maintain appropriate boundaries with students, and to make better decisions in any future interactions with students.
33The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: August 9, 2021
Stéphane Vallée, OCT Chair, Discipline Panel
Diane Ballantyne, OCT Member, Discipline Panel
Richard Filion Member, Discipline Panel
Footnotes
- See subsections 23(2.5)(a) and 23(2.8), Ontario College of Teachers Act, S.O. 1996, c. 12, in force December 8, 2020.
- As jointly amended by the parties on June 24, 2021, removing the phrase: “If the Oral Decision and Order is rendered between May 1 and August 1, the Suspension will commence on September 1.”
- As jointly amended by the parties on June 24, 2021, removing the phrase: “the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled.”