Ontario College of Teachers v Byers, 2021 ONOCT 90

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Byers 2021 ONOCT 90

Date: 2021-09-01

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

Daniel Ivan Byers, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DANIEL IVAN BYERS (REGISTRATION #487338)

PANEL: Emile Ramlochan, Chair Irene Dembek, OCT Andrew Glenny

HEARD: August 26, 2021

Jordan Stone, for the Ontario College of Teachers No one appearing for Daniel Ivan Byers 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 26, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Daniel Ivan Byers (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 October 14, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Daniel Ivan Byers 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);

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

(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. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides the following:

1. At all material times, Daniel Ivan Byers was 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.

2. At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Hamilton, Ontario.

3. At all material times, Student 1 was a [XXX]-year-old female student at the School.

4. In the academic year 2019/2020, the Member engaged in a personal relationship with Student 1 and engaged in boundary violations with Student 1.

5. In October 2019, the Member provided Student 1 with his personal cellphone number and email address.

6. From October 2, 2019 to October 15, 2019, the Member exchanged a significant number of text messages with Student 1. Attached hereto and marked as Appendix “B” is a copy of the text messages exchanged between the Member and Student 1 between October 2, 2019 and October 15, 2019.

7. The text messages between the Member and Student 1 addressed topics of a personal nature and crossed appropriate boundaries of a teacher and student relationship. On several occasions, the Member gave Student 1 the option to live with him at his house.

8. In October 2019, the Member invited Student 1 to his house on multiple occasions. On two occasions, Student 1 slept at the Member’s house overnight. On one of the occasions that Student 1 slept at the Member’s house, the Member gave Student 1 a massage. If the Member were to testify, he would state that the massage was not sexual in nature and that it was given because Student 1 was in pain and could not sleep.

9. On several occasions in October 2019, the Member gave Student 1 a hug.

10. On October 15, 2019, the Member was directed by the Board to cease communicating with Student 1.

11. After being directed to cease contact with Student 1, the Member routinely spoke with Student 1 on the phone, often for several hours at a time. Attached hereto and marked as Appendix “C” is a copy of Student 1’s phone records from October 13, 2019 to November 10, 2019 and November 13, 2019 to December 2, 2019 with calls and texts to/from the Member highlighted.

12. After being directed to cease contact with Student 1, the Member sent Student 1 emails on October 23, 2019 and October 24, 2019. Attached hereto and marked as Appendix “D” is a copy of the emails sent by the Member to Student 1 on October 23, 2019 and October 24, 2019.

13. On May 11, 2020, the Member’s employment with the Board was terminated.

PLEA OF NO CONTEST

14. 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 1-13 above (the “Uncontested Facts”).

15. The Member hereby acknowledges that paragraphs 4-12 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 him, being more particularly:

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

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

(c) he committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and 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).

16. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that 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 Discipline 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 with respect to the penalty proposed does not bind the Discipline Committee; and

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

17. 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, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, 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.

18. 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

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on August 26, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 13 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 the Member engaged in a personal relationship and in boundary violations with Student 1.

8The 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 standards of “Care” and “Trust” of The Ethical Standards for the Teaching Profession. The ethical standard of “Care” expects members to demonstrate their commitment to students’ well-being. By discussing personal topics with Student 1 over text message and inviting Student 1 to stay overnight at his home, the Member violated professional boundaries with Student 1 and demonstrated a lack of commitment to Student 1’s well-being. Moreover, the ethical standard of “Trust” provides that members’ professional relationships with colleagues are based on trust. By continuing to engage in an inappropriate personal relationship with Student 1 in blatant disregard of the Board’s directions, the Member also broke the trust which his administrators had placed in him. As such, the Member’s conduct fell well below the ethical standards.

9The Panel finds that the Member psychologically or emotionally abused a student contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member’s actions caused Student 1 significant emotional harm. Among other things, Student 1 had revealed to the Member at the beginning of their interactions that she was going to sleep on [XXX], she was having [XXX], and that she was going to start [XXX] (see Appendix B of Exhibit 3 at pages 11, 17 and 24). As such, she was a very vulnerable student. The Member, despite being aware of Student 1’s vulnerability, abused his trusted position by engaging in a personal relationship with Student 1. Within a two week period, the Member exchanged numerous text messages with Student 1,(see Appendix B of Exhibit 3); called Student 1 at various times of the day and night (some of the calls were several hours long); invited Student 1 to his house on multiple occasions; let Student 1 sleep at his house on two occasions, where on one of those occasions he gave Student 1 a massage; the Member also gave Student 1 hugs on several occasions. The Member’s conduct caused Student 1 to develop an emotional attachment to him. Student 1 told the Member that she cared for him, and that this confused her. Even after becoming aware of Student 1’s emotional attachment, the Member continued to interact with her. The Panel finds that by engaging in such behaviour, the Member showed a complete disregard for Student 1’s psychological or emotional well-being. As such, his conduct was psychologically or emotionally abusive.

10The Member committed acts which would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is unacceptable for teachers, who are in a trusted position of power and authority, to engage in a personal relationship with a student, in blatant disregard of the Board’s directions. Despite knowing that the student was very vulnerable and that she had developed an emotional attachment to him, the Member continued a personal relationship with her and took it upon himself to give her advice about her personal circumstances. Such conduct is contrary to the professional training received by members in this regard, and it fails to demonstrate the good judgment and responsibility expected of a teacher. The Member’s behaviour demonstrates serious moral and professional failings, such that it calls into question the Member’s ability to practice the profession. The Member’s conduct can therefore be characterized as disgraceful, dishonourable and unprofessional.

11The Panel finds that the Member’s conduct as described above, was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when teachers engage in boundary violations with students, as the Member did in this case.

F. PENALTY Decision

12The parties agreed to a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on August 26, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a reprimand, in writing, 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 10 months commencing on the 15th calendar day following the date of the Decision and the 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 accepting any position in Ontario that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding boundaries with students, subject to the following conditions:

(i) the Member shall provide the 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 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 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

13The 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. Avison, 2018 ONOCT 71, Ontario College of Teachers v. Ste-Croix, 2015 ONOCT 75, Ontario College of Teachers v. Gerwin, 2014 ONOCT 42, and Ontario College of Teachers v. Gowans, 2014 ONOCT 71.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are: (1) the repeated nature of the boundary violations despite warnings from the Board, (2) the fact that the Member’s misconduct was directed at a vulnerable student, and (3) the fact that the Member’s conduct caused emotional harm to Student 1. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing, 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.

15The Panel finds that the Member’s inappropriate personal relationship with Student 1, despite warnings from the Board, warrants a reprimand. Member are expected to always maintain appropriate professional boundaries with students. It is completely inappropriate for students to stay overnight at a teacher’s home or for a teacher to engage in communications that encourage an inappropriate personal and emotional attachment with a student 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.

16The Panel finds that the course of instruction regarding boundaries with students 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 interactions with students.

17Given the nature and severity of the Member’s conduct, the Panel finds that a 10-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 September 10, 2021, which is 15 days after the Panel’s Oral Decision and Order.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.