Ontario College of Teachers v. Porter, 2021 ONOCT 86

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Porter 2021 ONOCT 86

Date: 2021-08-19

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

Mary-Joy Porter, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARY-JOY PORTER (REGISTRATION #526862)

PANEL: Rebecca Forte, OCT, Chair Anne Resnick Rosemary Sadlier

HEARD: August 16, 2021

Kathryn McChesney and Ava Arbuck, for the Ontario College of Teachers

No one appearing for Mary-Joy Porter

Renée Kopp, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on August 16, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Mary-Joy Porter (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 August 5, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Mary-Joy Porter is guilty of professional misconduct as defined in the Act in that:

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

(b) she 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);

(c) 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);

(d) 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);

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

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Mary-Joy Porter 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 District School Board Ontario North East (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

3. Student 1 was a [XXX] year-old male student at the School during the 2016-2017 academic year.

4. Student 2, Student 3 and Student 4 were [XXX] year-old female students at the School during the 2017-2018 academic year.

5. Student 5 was [XXX]-year-old female student at the School during the 2016-2017 academic year. The Member taught Student 5 during the 2016-2017 academic year.

6. Around December 2017, Student 2 confided in the Member that she thought her [XXX] weren’t working. The Member failed to refer Student 2 to the Schools [sic] Youth Counselor or flag Student 2’s [XXX] to an appropriate person.

7. Around December 2017, Student 3 told the Member that she was suffering from [XXX]. The Member failed to refer Student 3 to the Schools [sic] Youth Counselor or flag Student 3’s [XXX] to an appropriate person.

8. Around December 2017, the Member communicated electronically though text and social media with several students including specifically Student 1, Student 2, Student 3 and Student 4. These communications were inappropriate.

9. On December 6, 2017, the Member was late to her class, leaving her students unsupervised during her absence.

10. On December 15, 2017, the Member brought a vape pen to school and allowed Student 2, Student 3 and Student 4 to vape with her in the [XXX] office.

11. On another occasion, the Member allowed Student 5 to vape with her in the [XXX] office.

Conduct with Student 1

12. The Member had an inappropriate relationship with Student 1 which included;

(a) Telling Student 1 about her martial [sic] problems;

(b) Driving Student 1 to School alone in her personal vehicle;

(c) Attending at Student 1’s place of employment on one or more occasions and on one of those occasions, chatting with him for an hour;

(d) Communicating electronically with Student 1 though text message and social media; and

(e) Communicating with Student 1 on the telephone to discuss personal matters outside of school hours.

13. In December 2017, while in class, the Member whispered something in Student 1’s ear. This action was witnessed by Student 3.

14. On December 6, 2017 the Member was alone in the [XXX] office with Student 1 with the door locked.

15. On December 13, 2017 the Member was alone in the [XXX] office with Student 1 with the door locked.

16. On December 15, 2017 the Member was alone in the [XXX] office with Student 1 with the lights turned off.

Undertaking and Acknowledgement

17. On the 12th day of July, 2021, the Member signed and Undertaking and Acknowledgement resigning and agreeing not to seek reinstatement of her Certificate of Qualification and Registration. She further undertook not to seek or accept employment in any teaching position in any public or private school in Ontario, or in any other capacity for which an Ontario Certificate of Qualification and Registration is required. Attached hereto and marked as Exhibit “B” is a copy of the Members [sic] Undertaking and Acknowledgement.

GUILTY PLEA

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

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

20. By this document the Member states that:

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

(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, (s)he [sic] is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including her name, shall be published in the official publication of the College;

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

(f) she understands and acknowledges that she is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

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

D. DECISION

6Counsel for the College requested that the 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 stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought because proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted this request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on August 16, 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 in the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.

9The Admitted Facts demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 32 of the College’s by-laws, which prescribe the Ethical Standards and the Standards of Practice for the Teaching Profession. Among other things, members are expected to be trustworthy in their professional relationships with students (“Trust”) and to express their commitment to students’ well-being and learning through professional judgment (“Care”). The Member defied these expectations. First, she failed to maintain professional and appropriate boundaries with students. The Member developed an inappropriate relationship with Student 1 that involved, among other things, discussing topics of a personal nature with Student 1, driving Student 1 to school in her vehicle, visiting Student 1 at work, and spending time alone with Student 1 in the School’s [XXX] office with the door locked. She also had inappropriate text and social media communications with several students. Second, the Member demonstrated inadequate care for the safety and well-being of students that could have resulted in their harm. The Member did not report to her school’s administration or to professional supports (like the School’s Youth Counsellor) that two students had disclosed to her that they were [XXX].

10The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Members of the teaching profession hold a unique position of trust and authority. They are required to act as positive role models and to conduct themselves morally and with integrity, as described at subsection 264(1)(c) of the Education Act. Bringing a vape pen to school and inviting students to vape with the Member in the [XXX] office sets a bad example for students. Furthermore, the fact of meeting with some students in a staff-only area for this purpose creates a perception that a teacher is engaging in favouritism or creating an inappropriate hierarchy among students, which also goes against a teacher’s duty to model virtuous behaviour.

11The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Panel accepts College Counsel’s submission that the member’s behaviour can properly be characterized by all three terms. It is disgraceful, dishonourable and unprofessional for a member to take advantage of her position of trust and authority to develop an inappropriate personal relationship with a student and to engage in inappropriate electronic communications with students. The Member’s breach of appropriate student-teacher boundaries, as described above, calls into question the Member’s professional judgment. Further, the Member’s failure to report disclosures made by two students about their [XXX] also demonstrates a disregard for the Member’s professional obligations and a moral failing that put the safety and well-being of students at risk. The Member’s conduct was also unprofessional when she left students unsupervised while running late to class.

12Finally, the Member’s behaviour, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is seriously undermined when teachers abuse their privileged position to engage in inappropriate personal relationships with students and when they fail to prioritize the safety and well-being of students.

F. UNDERTAKING AND ACKNOWLEDGMENT

13On July 12, 2021, the Member entered into an Undertaking and Acknowledgment (Exhibit 2, Tab B) with the College in which she agreed to the following terms:

1. I hereby resign as a member of the Ontario College of Teachers with immediate effect.

2. For greater certainty, I also undertake that I will never seek reinstatement of my Certificate of Qualification and Registration.

3. I undertake not to seek or accept employment in any teaching position in any public or private school in Ontario, or in any other position or capacity for which an Ontario Certificate of Qualification and Registration is required.

4. I understand that a breach of this Undertaking and Acknowledgment, may constitute professional misconduct and that in those circumstances, the Ontario College of Teachers will be at liberty to institute proceedings against me.

5. I acknowledge that my status on the Public Register of the Ontario College of Teachers will be “Resigned-Cancelled” and the notation will read as follows:

“On July 12, 2021 the Member resigned her Certificate of Qualification and Registration. The Member has undertaken not to reapply for reinstatement of her Certificate of Registration and Qualification [sic].”

6. I acknowledge my understanding [sic] the scope, purpose and effect of my execution of this Undertaking and Acknowledgment and am executing same voluntarily, unequivocally, and with the advice of legal counsel.

G. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 16, 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 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 4 (four) 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.

H. REASONS FOR PENALTY DECISION

15The 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 for similar boundary violations with students, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Lepage, 2017 ONOCT 29, Ontario College of Teachers v. Grima, 2018 ONOCT 16, and Ontario College of Teachers v. Riley, 2019 ONOCT 61.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that the Member’s inaction following disclosures from two students about their [XXX] put those students at risk of harm. Further, the Member’s misconduct involved several students. In terms of mitigating factors, the Member admitted her misconduct, saving the time and expense of a contested hearing. Prior to these incidents, the Member had a successful teaching career and has not been the subject of discipline proceedings at the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties, in conjunction with the Member’s Undertaking and Acknowledgment, is reasonable.

17The Panel finds that a reprimand will serve as a specific deterrent to the Member and make clear to other members that the profession will not tolerate this kind of misconduct. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession. As role models in a trusted position of authority, members of the teaching profession are expected to prioritize the safety and well-being of students and maintain appropriate and professional student-teacher boundaries. The reprimand will allow the Panel to directly address its concerns with the Member.

18Given the nature and severity of the Member’s misconduct, the Panel finds that a four-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 in this range is justified. As the Member has resigned her Certificate of Qualification and Registration and will not be returning to teaching, the suspension will 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 August 31, 2021, which is 15 days after the Panel’s Oral Decision and Order.²

19In view of the serious nature of the Member’s misconduct, the Panel finds it reasonable that the Member will no longer teach or seek to return to the teaching profession in Ontario. In accordance with the terms of her Undertaking and Acknowledgment, the Member is no longer entitled to teach in publicly funded or private schools in Ontario. The Panel is satisfied that the terms of the Undertaking and Acknowledgment will further serve the goal of public protection by ensuring that the Member poses no future risk to students.

20The 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 College Counsel’s request.
2. 2The Panel sought additional submissions about whether it had jurisdiction to suspend a member who had already resigned their Certificate of Qualification and Registration. In making their order in this case, the Panel accepted the advice of Independent Legal Counsel that despite the Member’s resignation of her certificate, the Panel has continuing jurisdiction to order a suspension pursuant to subsection 14(5) of the Act and the Divisional Court’s ruling in College of Nurses of Ontario v. Mark Dumchin, 2016 ONSC 626.