DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Toh 2021 ONOCT 99

Date: 2021-08-10

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

Kar-Fai Andy Toh, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KAR-FAI ANDY TOH (REGISTRATION #431290)

PANEL: Tom Potter, Chair

Rebecca Forte, OCT

Nicola Powadiuk, OCT

HEARD: May 11 and June 24, 2021

Charlotte-Anne Malischewski and Nicholas Fitz, for the Ontario College of Teachers

No one appearing for Kar-Fai Andy Toh

Rebecca Durcan and 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 May 11 and June 24, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

2The Member did not attend the hearing and did not have legal representation, although he did appear via videoconference to receive his reprimand after the hearing.

3On May 11, 2021, the Panel unanimously found that Kar-Fai Andy Toh (the “Member”) engaged in professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(4), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19). The Panel received the parties’ Joint Submission on Penalty (Exhibit 3) but sought additional submissions on how the proposed penalty meets the goal of protecting students and preserving the public’s confidence in the College’s ability to regulate the profession. The hearing was subsequently adjourned so that the parties could prepare their additional penalty submissions.

4On June 24, 2021, the Panel reconvened to hear the parties’ additional penalty submissions. The majority of the Panel accepted the parties’ jointly proposed penalty and made its order on June 24, 2021. The minority of the Panel agreed with the majority with respect to all elements of the penalty ordered, other than the length of the suspension.

5The unanimous Panel’s reasons with respect to its findings of professional misconduct, and the majority and minority’s reasons with respect to penalty are set out below.

A. PUBLICATION ban

6The 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

7The allegations against the Member in the Notice of Hearing dated October 10, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Kar-Fai Andy Toh is guilty of professional misconduct as defined in the Act in that:

(a) he used a name other than the member’s name, as set out in the register, in the course of his professional duties, contrary to Ontario Regulation 437/97, subsection 1(4);

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

(c) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(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, and specifically section 32 of 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);

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

C. AGREED STATEMENT OF FACTS

8College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Kar-Fai Andy Toh is a member of the Ontario College of Teachers. Attached 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 Toronto District School Board (the “Board”) as a teacher at [XXX] Institute (the “School”) in Toronto, Ontario.

3. At all material times, Student 1 was a male student and Student 2 was a female student at the School. At all material times, Person A was a male teacher at the School and the Member’s colleague.

Involvement with Student Photos

4. The Member met with the School principal in March 2016 with respect to concerns that he had accessed and altered student photos from the School’s database, distributed the altered photos to others, and had contacted students using social media and his personal email address.

5. The principal told the Member to stop communicating with students using these methods and referred him to Ontario College of Teachers’ professional advisory with respect to the use of electronic communication and social media. The Member was cautioned against having any involvement with student photos and was informed that his actions made students feel “freaked out”, “uncomfortable”, and “threatened”. The Member acknowledged he had made a mistake and indicated that he would correct his behaviour.

6. Contrary to the principal’s direction, the Member used his personal email address to contact the School’s student council (“SAC”) on May 1, 2016. He offered to improve student photos that had been uploaded to SAC’s Facebook gallery and attached a before-and-after sample showing how one of the photos had been retouched. The Member subsequently used his personal email address to contact Student 2 regarding student photos on at least three separate occasions.

Covert Yearbook Involvement

7. In the fall of 2016, Student 1 spoke with the principal about creating a Grade [XXX] yearbook (the “Yearbook”) and having the Member as its staff supervisor. The principal allowed Student 1 to go ahead with the Yearbook but told the Member that he could not be the supervisor because she did not trust that he would do a good job. The role of supervisor was instead assigned to Person A. The Member understood from his discussion with the principal that he was to have no involvement with the Yearbook.

8. Contrary to the principal’s direction, the Member met with Student 1 several times to discuss the Yearbook during the 2016-2017 academic year. He began communicating with Student 2 via email for the same purpose after Student 1’s[XXX]. The Member’s email communications with Student 2 were sent from his personal email address. They started in or around June 2017 and ceased in or around November 2017.

9. In his emails to Student 2, the Member encouraged her to lie to the principal about his involvement in the Yearbook, misled Student 2 as to the reason why he had not been selected as the staff supervisor, and made negative comments about both Student 1 and Person A. Attached as Exhibit “B” is a copy of the Member’s email to Student 2 on August 8, 2017 in which the Member criticizes Student 1’s prior efforts with the Yearbook. Attached as Exhibit “C” is a copy of the Member’s email to Student 2 on August 9, 2017 in which he again criticizes Student 1 and suggests that Person A would be too busy to help her.

10. On November 20, 2017, Student 2 posted an announcement to the School’s Facebook page stating that the Yearbook would be cancelled. The Member created a fake Facebook account using a false name and sent a message to Student 2 inviting her to speak with him about the Yearbook and referencing a [sic] earlier discussion when she had told him that the Yearbook would go ahead as long as 100 were sold. Student 2 felt uncomfortable receiving a message from an account which she did not recognize and did not respond.

11. The Member sent an email to Student 2 approximately 30 minutes later. He advised Student 2 that he knew someone who was willing to purchase enough Yearbooks to ensure that the sales quota would be met and instructed her to keep this a secret. In fact, it was the Member who was willing to purchase enough Yearbooks to ensure that 100 would be sold and the Yearbook would be a success.

Board Discipline

12. Student 2 shared the Member’s emails and Facebook message with the principal. The Member was issued a letter of discipline dated February 1, 2018 informing him that he would be suspended for three days without pay from February 5 to 7, 2018 inclusive and would be required to complete professional development training with respect to boundaries with students. Attached as Exhibit “D” is a copy of the principal’s letter to the Member.

Prior History

13. The Member was previously disciplined by the Board and suspended for twenty days for sexual harassment of a colleague, improper use of a school computer, and unprofessional behaviour with students. The same conduct was the subject of a complaint to the College which was resolved by way of a memorandum of agreement (the “MOA”). The Investigation Committee cautioned the Member to maintain, at all times, appropriate boundaries with colleagues, students, and all school community members.

GUILTY PLEA

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

15. 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(4), 1(7), 1(7.2), 1(14), 1(15), 1(18), and 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 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 otherwise 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 him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

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

17. 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

9Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. The Panel’s permission to withdraw subsection 1(5) was being sought on the basis that proceeding under subsection 1(5) would be duplicative of other allegations in the Notice of Hearing. The Panel granted the request.

10Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on May 11, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(4), 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

11The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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. The Admitted Facts demonstrate that the Member repeatedly engaged in inappropriate electronic communications with students and failed to maintain appropriate professional boundaries, including through his involvement with student photos and the school Yearbook, which was contrary to his principal’s direction.

12The Panel finds that the Member used a name other than the member’s name, as set out in the register, in the course of his professional duties, contrary to subsection 1(4) of Ontario Regulation 437/97. The Panel accepts College Counsel submission that the term “professional duties” in subsection 1(4) should be given a liberal interpretation and includes extra-curricular activities such as involvement with the Yearbook. The Panel finds that by creating a fake Facebook account using a false name to communicate with Student 2 regarding the Yearbook, the Member was in violation of this provision. It is highly inappropriate and unethical for teachers to engage in such deceitful conduct.

13The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. In his communications with Student 2, the Member encouraged her to lie to the principal and to keep secrets about his involvement with the Yearbook, and he made negative comments about Student 1 and criticized Student 1’s prior efforts with the Yearbook. It is inappropriate for teachers to make adverse remarks to students about other students and to keep secrets and encourage students to lie to authority figures. Given the unique position of trust and authority that members of the profession hold, the Member’s manipulative communications were verbally abusive. Members must behave as upstanding members of the school community. The Member did the opposite and encouraged Student 2 to follow his poor example.

14The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario regulation 437/97. The Member accessed and altered student photos from the School’s database, distributed the photos to others and contacted students using social media and his personal email address. His actions made students feel “freaked out”, “uncomfortable”, and “threatened”. Furthermore, the Member used a fake Facebook account to communicate with Student 2 regarding the Yearbook. Student 2 felt uncomfortable receiving a message from an account which she did not recognize. Given the power imbalance that exists between teachers and students, it is emotionally abusive for teachers to engage in conduct that make students feel freaked out, threatened, and uncomfortable. The Member’s conduct therefore was psychologically or emotionally abusive.

15The Panel finds that the Member failed to comply with the Act, regulations, or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College Bylaws, which sets out the professional and ethical standards for the teaching profession. In particular, the Member breached the ethical standards of “Care”, “Trust”, and “Integrity”.

16The ethical standard of “Care” requires members to express their commitment to students’ well-being and learning through positive influence and empathy in practice. The Member’s inappropriate involvement with students’ photos made them feel scared, threatened and uncomfortable. This is contrary to a member’s expected commitment to students’ well-being.

17The ethical standard of “Trust” provides that “Members’ professional relationships with students, colleagues, parents, guardians and the public are based on trust”. The Member breached the trust of students, their parents and the public by accessing, altering and distributing student photos from the School’s database. He breached the trust of his principal by defying the principal’s directions related to the Member’s electronic communications with students and his involvement with the Yearbook.

18The ethical standard of “integrity” requires members to conduct themselves with “honesty, reliability and moral action”. By using a false name in the course of his professional duties and through his deceitful communications with Student 2 relating to the Yearbook, the Member showed a lack of integrity. Teachers hold a unique position of trust in society and, by virtue of their important role in their communities, they must always behave in an ethical manner. The Member failed to meet this expectation.

19The 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. Among other things, subsection 264(1)(c) of the Education Act requires teachers to demonstrate the highest regard for a number of virtues including truth, justice, humanity and purity. Essentially, teachers are expected to act as positive role models. By repeatedly failing to maintain appropriate professional boundaries with students, engaging in dishonest behaviour and encouraging Student 2 to lie, the Member did not exemplify the qualities that teachers are expected to demonstrate as trusted members of the school community. The Member’s conduct was therefore at odds with his obligations as a teacher.

20The Member breached subsection 1(18) of Ontario Regulation 437/97. By engaging in dishonest behaviour, a series of boundary violations with students and by disregarding his principal’s authority, the Member’s conduct was disgraceful, dishonourable and unprofessional. Disgraceful and dishonourable conduct includes conduct which is immoral or dishonest. It is unacceptable for teachers to use a false name in the course of their professional duties and to engage in conduct that causes emotional harm to students. The Panel finds that this type of misconduct is likely to be viewed as immoral and dishonest by the profession. The Member’s conduct was unprofessional in that he repeatedly acted contrary to the directions of his principal. Not only was his behaviour insubordinate, but he also encouraged a student to lie to the principal, which showed very poor professional judgment.

21The Panel finds that the Member’s inappropriate conduct 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 eroded when members of the profession engage in dishonest behaviour and repeatedly violate professional boundaries.

F. penalty SUBMISSIONS

22On May 11, 2021, the Panel received a Joint Submission on Penalty (Exhibit 3) which was presented by the College. After hearing initial submissions on penalty, the Panel sought additional submissions about how the Joint Submission on Penalty meets the goal of protecting students and preserving the public’s confidence in the College’s ability to regulate the profession. The Panel also requested cases involving students’ photos and/or a member using a false identity to contact a student, and additional information regarding the Member’s prior history as described at paragraph 13 of the Agreed Statement of Facts and Guilty Plea. The hearing was adjourned to June 24, 2021, so that the College could prepare its additional penalty submissions.

23The College responded to the Panel’s request by way of written submissions dated June 18, 2021 and made supplementary oral submissions on June 24, 2021. A summary of the College’s submissions is set out below.

24College Counsel submitted that the test for rejecting a joint submission on penalty is very high, as set out by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and recently reaffirmed by the Divisional Court in Bradley v. Ontario College of Teachers, 2021 ONSC 2303. The Panel should only reject a joint submission if the proposed resolution is so unhinged from the facts and law that accepting it would bring the administration of justice into disrepute. She submitted that this stringent test has not been met in the present matter, as the penalty proposed by the parties in the Joint Submission of Penalty meets the penalty objectives of protecting the public and students and falls within a range of reasonable outcomes.

25In addition, College Counsel drew the Panel’s attention to the fact that, while no two cases are identical on their facts, cases involving similar forms of professional misconduct should be treated alike. The conduct at issue involves boundary violations, the Member’s dishonesty and his breach of professional ethics. According to College Counsel, the penalty proposed by the parties is in keeping with the penalty range established by the Discipline Committee in similar cases.

26Moreover, College Counsel submitted that, the Member’s prior history set out at paragraph 13 of the Agreed Statement of Facts and Guilty Plea, is not a prior finding of the Discipline Committee. The evidence with respect to sexual harassment of a colleague is not relevant to the current matter. But rather, the fact that prior direction was given to the Member with respect to unprofessional behaviour with students is relevant to the current matter. College Counsel submitted that the panel should have regard to the Member’s prior history but should not overweight this evidence.

27Finally, College Counsel urged the Panel to confine its review to the facts before it, which were included in the parties’ Agreed Statement of Facts and Guilty Plea.

28The Member did not provide any additional submissions.

G. majority PENALTY DECISION

Per Tom Potter and Rebecca Forte (the “Majority”):

29In an oral decision rendered on June 24, 2021, the majority of 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 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 three months commencing on the 15^th 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) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course or courses of instruction pre-approved by the Registrar regarding boundaries and 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 or courses 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 or courses 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 or courses and reporting on the progress of the Member with respect to addressing the outlined goals of the course or courses.

H. majority REASONS FOR PENALTY DECISION

(1) The Case Law

30The Panel Majority closely considered the cases presented by the College in support of its submissions that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes: Ontario College of Teachers v. Waud, 2020 ONOCT 193, Ontario College of Teachers v. Allarde, 2019 ONOCT 65, Ontario College of Teachers v. Johnson, 2019 ONOCT 23, Ontario College of Teachers v. Debich, 2018 ONOCT 8, Ontario College of Teachers v. Drakes, 2019 ONOCT 69, Ontario College of Teachers v. Brace, 2018 ONOCT 3, Ontario College of Teachers v. Bagshaw, 2018 ONOCT 54, Ontario College of Teachers v. Chiandussi, 2018 ONOCT 48 and Ontario College of Teachers v. Parkin, 2016 ONOCT 40.

31In large measure, the cases that were provided by the College were of limited assistance to the Majority in reaching its conclusion. The facts of the cases provided shared some similarities with the case before the Majority, but most differed in important aspects, leaving the Member’s case a relatively unique one. The cases provided (except for Chiandussi and Parkin,which are sexual abuse cases) show some level of dishonesty or inappropriate posting of a picture of the back of a student’s head on social media (e.g., Drakes) by a member. However, none of the cases provided demonstrate any of the unique features of the Member’s case such as the alteration of students’ photographs, which made students’ feel “threatened” or “freaked out” and the use of a false name by members to communicate with students

(2) The Aggravating and Mitigating Factors

32The Majority 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.

33There are many aggravating factors in the Member’s case, including:

1. The repeated nature of the Member’s misconduct;

2. The fact that he engaged in similar misconduct after having previously received Board discipline and having been cautioned by the Investigation Committee of the College for violating professional boundaries with students;

3. The Member’s repeated defiance of the principal’s various reasonable directions prohibiting him from communicating with students on social media, having any involvement with student photos, and participating in the production of the Yearbook.

4. The Member’s surreptitious and deceptive behaviour such as creating a false identity on Facebook to communicate with Student 2, and the fact that he encouraged Student 2 to lie.

5. The Member’s conduct caused emotional harm to the students, in that they felt “freaked out”, “uncomfortable” and “threatened”.

6. The Member’s apparent fixation with students’ photographs (even though no sexual abuse was alleged) was concerning to the Majority.

34In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing and has not been the subject of College discipline in the past.

(3) The Majority accepts the Joint Submission on Penalty

35As emphasised by College Counsel, the Panel must give joint submissions a high degree of deference. The Majority 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. In Anthony-Cook, at para. 34, the Supreme Court of Canada explained the public interest test 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…

36The Majority’s initial reluctance about accepting the Joint Submission on Penalty presented by the parties was allayed after close consideration of the Anthony-Cook test as affirmed in Bradley. The Majority finds that, although the penalty proposed in the joint submission is not what it would have ordered in a contested hearing, it does not warrant rejection. The Majority is satisfied that, considering all the circumstances of this case, the public interest would be served through this penalty. The Majority therefore accepts the penalty jointly proposed by the parties.

37The Majority finds that the Member’s repeated boundary violations with students and his dishonest behaviour, despite prior warnings from the Board and the College, warrants a reprimand by his peers. Teachers hold a unique position of trust and authority. They are expected to always maintain appropriate professional boundaries with students and to behave in an ethical manner. The reprimand will allow the Panel to directly address its concerns with the Member and is intended to 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.

38The Majority finds that the three-month suspension jointly proposed by the parties is not so unreasonable that accepting it would bring the administration of the discipline process into disrepute. The suspension is meant to 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 1, 2021.

39The Majority notes that the Member has completed a professional development training with respect to boundaries with students. The Majority finds that the course or courses of instruction regarding boundaries and professional ethics is intended to further assist in the rehabilitation of the Member. The Majority accepts College Counsel’s submission that it can provide guidance in its reasons with respect to the content of the course or courses of instruction. As such, the Majority finds that the course or courses of instruction should address the appropriate use of electronic media and the importance of continuously modelling honesty and integrity. The coursework is intended to remind the Member of his obligations as a teacher and to help him to make better decisions in any future interactions with students. It will also serve as a reminder to him of the importance of following the directions of his superiors.

40The Majority is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

I. minority penalty decision AND Reasons

Per Nicola Powadiuk:

41I have had the benefit of reading the Majority’s penalty reasons in this matter. I concur with the Majority with respect to all elements of the penalty ordered, other than the length of the suspension. I would have rejected the parties’ Joint Submission on Penalty on the basis that the three-month suspension was so lenient that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. I find that a 12-month suspension would have been appropriate in the circumstances of this case for the following reasons.

42First, the College has not demonstrated that the penalty of a three-month suspension falls within a range of reasonable outcomes. I agree with the Majority that the prior decisions provided by the College were not analogous to the conduct at issue in the present case. None of the cases provided involved a member repeatedly altering photographs of students in a manner that left them feeling “threatened” and “freaked out” or contacting a student under a false identity on social media. Cases such as Chiandussi and Parkin, where the members have used pseudonyms (and so can be said to bear some similarity to using a false identity), also involved findings of sexual abuse. In those cases, the members’ certificates were revoked. Because of the sexual abuse findings these cases were not helpful either in showing the range of penalty outcomes. As such, I am not satisfied that the cases provided by the College demonstrate that a three-month suspension falls within a range of reasonable outcomes.

43Secondly, I find that a three-month suspension is unduly lenient and does not accurately reflect the severity of the misconduct, bearing in mind the effect which the Member’s actions had on students and his prior history. The Member has a history of sexual harassment, improper use of school computers, a prior board suspension, and an Investigation Committee caution for similar misconduct. It is important to also note that the Member has agreed that he manipulated photos of students in a manner that made students feel “freaked out”, “uncomfortable” and “threatened”. He again altered student photos in blatant defiance of the principal’s prior direction. Furthermore, the Member went to the extent of using a false identity on social media to contact Student 2 and he was going to buy enough Yearbooks to ensure that 100 would be sold. I find that the nature and pattern of the Member’s conduct is particularly concerning and as such a 12-month suspension would have been appropriate in the circumstances.

44Thirdly, I find that the three-month suspension does not adequately protect the public. Such a short suspension would also erode the public’s confidence in the teaching profession as well as the College’s ability to regulate the profession effectively. The repeated and concerning behaviour of the Member warrants a longer suspension, which would keep him out of the classroom for a longer period of time and as such provide stronger protection for the students and the public. Furthermore, a short term that is not proportionate to the severity of the conduct at issue, might lead the public to believe that members of the teaching profession will receive lenient penalties, even when their conduct is serious and presents potentially significant risk to students. This will undermine the public’s confidence in the teaching profession and the College’s ability to govern and adequately discipline its members.

45Finally, I understand that the Discipline Committee should be guided by the range of prior outcomes for similar misconduct in making its penalty decision. However, these outcomes are found in non-binding precedents. The protection of the public interest is a crucial function of the Discipline Committee’s orders and a more severe penalty might be appropriate in certain circumstances. By articulating my view that a 12-month suspension would be appropriate for the type of misconduct exhibited by the Member in the present case, I hope that this will contribute to a new range of outcomes for similar cases.

Footnotes

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