DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mammarella 2022 ONOCT 111

Date: 2022-12-13

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 Mark Mammarella, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DANIEL MARK MAMMARELLA (REGISTRATION #257491)

PANEL: Linda Staudt, OCT, Chair Rachelle Coleman Erin Durant

HEARD: November 9, 2022

Nicholas Fitz, for the Ontario College of Teachers

Kirsty Niglas-Collins and Chris Reid, for Daniel Mark Mammarella

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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, or Student 2 who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

The Discipline Committee further ordered a publication ban pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, preventing the publication of the identity of, or any information that could disclose the identity of Student 1.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 9, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Daniel Mark Mammarella (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of his reprimand as agreed to by the parties. 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.

4Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of Student 2, who was allegedly sexually abused.¹ Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 2.

5The Panel also ordered a publication ban pursuant to subsection 32.1(1) of the Act with respect to Student 1, which was first ordered at a previous hearing date. Subsection 32.1(1) gives the Panel authority to make an order that the public, including members of the College, be excluded from a hearing if, in the Panel’s opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be public. Subsection 32.1(1) allows the Panel to order a publication ban in circumstances in which the test for closing the hearing under subsection 32(7) is met, and the Panel did so in this case with respect to Student 1’s identity.

B. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated October 28, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member 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);²

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

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

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;³

(e) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32⁴ 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. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Daniel Mark Mammarella 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 York Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX] Ontario.

3. During the 2016-2017 academic year, Student 1 was a [XXX]-year-old Grade [XXX] male student at the School. During the 2017-2018 academic year, Student 1 was a Grade [XXX] male student at the School.

4. During the 2016-2017 academic year, Student 2 was a Grade [XXX] male student in the Member’s [XXX] class.

Transporting Students Without Board Authorization

5. In the fall of 2016, the Member transported at least three male students in his vehicle and left the School premises without Board authorization. There was no school related purpose for the Member to drive the students or take them away from the School premises.

6. When the Member was questioned about this incident in the fall of 2016, the Member admitted to having driven and dropped off the students. The principal directed the Member to never again transport students unless it was for an official school event and he obtained the appropriate signed permission forms.

Inappropriate Personal Messages with Student 1

7. The Member sent hundreds of emails to Student 1’s personal email account. The emails were unrelated to any School activities.

8. Some messages were to inform Student 1 of the Member’s whereabouts, such as covering a [XXX] class, and to invite Student 1 to join him. Many emails comprised of emojis, links to videos and news clips or articles, as well as photographs of the [XXX] team that Student 1 played on.

Inappropriate Physical Contact with Student 1

9. Subsequently, during the 2016-2017 school year, the Member drove Student 1 home from school. This occurred on numerous occasions.

10. On April 30, 2018, Student 1 accidentally cut his hand during class. Student 1’s classroom was close to the Member’s classroom. Student 1 intended to go to the washroom to wash his hand, but was concerned that he would have to pass the Member’s classroom to get there. Student 1 attempted to pass the Member’s classroom quickly.

11. When Student 1 tried to pass the Member’s classroom, the Member saw him and called Student 1 toward him. Student 1 told the Member that he was on the way to the washroom and that he could not stop. When Student 1 left the washroom, the Member was waiting outside his classroom door, and again called Student 1 to him.

12. Student 1 went to the Member’s classroom. The Member asked other students to leave the classroom, as a result of which the Member was left alone with Student 1 in his classroom. The Member then came close to Student 1, put his arm around him and stated: “I know you think I’m disappointing you, but I’m not… I still care about you… I miss my buddy… I miss driving you home…”.

13. The Member then turned Student 1 around to hug him. This interaction with the Member made Student 1 uncomfortable.

Student 1’s Report to School Administration

14. In or around April and May 2018, Student 1 reported the incidents with the Member to the administration of the School. Safety plans were implemented to eliminate or reduce the Member’s interactions with Student 1. Student 1 expressed that he had attempted to avoid the Member, but that this had caused the Member to seek him out more.

15. After the incident on April 30, 2018, Student 1 reiterated his discomfort around the Member, describing the Member as “obsessed” with Student 1.

16. The administration of the School contacted both the Children’s Aid Society and the York Regional Police. Due to Student 1’s age, the Children’s Aid Society did not proceed with an investigation. The York Regional Police investigated and no charges were laid. Student 1 was clear to the police that he did not perceive anything sexual in the Member’s behaviour. He described the Member’s conduct treating him “like a friend”.

Inappropriate Physical Contact with Student 2

17. In May 2017, Student 2 gave a presentation in the Member’s Grade [XXX] [XXX] class. Student 2 received a grade of approximately 76%.

18. On May 31, 2017, Student 2 went to see the Member to discuss his grade. When Student 2 asked the Member why he had lost marks, the Member could not explain his reasoning.

19. During this discussion, the Member grabbed Student 2’s arm and stated, “I knew you’d come.” The Member asked Student 2 if he was serious. When Student 2 responded that he was, the Member stated: “you know me, you’re not supposed to be doing this to me” and that Student 2 was “betraying [him] on a personal level.” This interaction made Student 2 uncomfortable.

20. Student 2 advised the Member that if he was not going to mark his presentation fairly, that he would have to speak with the administration of the school. The Member appeared angry, and then raised Student 2’s grade. Following this incident, the Member and Student 2 had a strained relationship and Student 2 perceived that he was ignored in class.

The Board’s Response

21. On May 7, 2018, the Board issued a written warning regarding his conduct at the school and the Member was placed on paid home assignment. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member dated May 7, 2018.

PLEA OF NO CONTEST

22. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1 – 21 above (the “Uncontested Facts”).

23. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18), and 1(19).

24. By this document the Member states that:

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

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

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct.

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

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

25. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

26. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

8Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.3) of Ontario Regulation 437/97, and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act, be withdrawn. College Counsel sought to withdraw the allegation that the Member contravened subsection 1(5) because it presented evidence that was duplicative with the evidence and submissions regarding the subsection 1(14) allegation. With regard to subsection 1(7.3) and the allegation that the Member engaged in sexual abuse of a student or students as defined in section 1 of the Act, College Counsel submitted that there was insufficient evidence to prove allegations of sexual abuse. The Panel granted these requests and found that it was reasonable and in the public interest to no longer proceed with these allegations.

9Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 9, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 21 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 heads of misconduct set out above. The Uncontested Facts demonstrate that the Member repeatedly failed to maintain appropriate professional boundaries with students, which made students feel uncomfortable.

11The Panel found that the Member breached subsection 1(7.1) of Ontario Regulation 437/97 by physically abusing Student 1 and Student 2. The Panel accepted that on April 13, 2018, the Member put his arm around Student 1 while making inappropriate comments to him, then turned him around and hugged him, in an empty classroom. With regard to Student 2, the Panel found that on May 31, 2017, the Member grabbed Student 2’s arm while discussing Student 2’s grade from a class presentation. There was no reason for the Member to touch the students in any way. The Member’s touching of both students was particularly egregious and inappropriate because both occurred in a school setting where he held authority over the students as a teacher. The Member’s conduct in initiating and maintaining inappropriate physical contact was physically abusive. Members must always maintain professional boundaries. It is completely unacceptable for Members to touch students for personal reasons (e.g., when the Member put his arms around Student 1, he said “I still care about you… I miss my buddy… I miss driving you home…”) or in a way that could make students feel uncomfortable, as was the case for both Student 1 and Student 2.

12The Panel found that the Member psychologically and emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member made repeated personal, unwanted contact with Student 1 both in person and over email, to the point where Student 1 reported the incidents to School administration and safety plans were implemented to eliminate or reduce the Member’s interactions with Student 1. However, Student 1 expressed that his attempts to avoid the Member caused the Member to seek him out more. The Member, who Student 1 described as “obsessed”, made Student 1 feel uncomfortable. The Member was also psychologically and emotionally abusive to Student 2 when he made inappropriate comments to him when discussing Student 2’s grade and then acted in a manner that led Student 2 to perceive that the Member was ignoring him in class. The Panel finds the Member’s conduct to be psychologically and emotionally abusive because it made both students feel uncomfortable around the Member. As a teacher who holds a unique position of trust and authority over students, it is abusive to treat students in this manner and make them feel uneasy.

13The Panel found the Member to have breached the professional and ethical standards for the teaching profession, which are set out at section 26 of the College by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member breached the professional standards of “Commitment to Students and Student Learning” and “Leadership in Learning Communities”. By making school an uncomfortable place for Student 1 and Student 2, the Member demonstrated a lack of sensitivity to factors that influence student learning and a failure to promote and participate in fostering safe and supportive learning communities. The Member’s psychological or emotional, and physical abuse of Student 1 and Student 2 interfered with their learning by making them feel uncomfortable around him, in person and virtually.

14The Panel further found the Member to have breached the ethical standards of “Care”, “Trust”, “Respect” and “Integrity”. Members are required to show compassion and interest in developing students’ potential, they must honour students’ human dignity and emotional wellness, and their relationships with students must be based on trust, honesty and moral action. The Member acted contrary to these ethical standards when he sent hundreds of emails unrelated to school to Student 1, drove him home on multiple occasions and then accosted him alone in a classroom, hugged him and made inappropriate comments to him. The Member similarly breached the ethical standards when he made inappropriate comments to Student 2 unrelated to the merits of Student 2’s question, grabbed his arm and led Student 2 to perceive that their relationship was strained by ignoring him in class. The Member did not show any compassion nor he did he exercise a modicum of integrity in his relationships with these students. He put his own needs and wants ahead of the students’ well-being and burdened the students by making them feel uncomfortable at school.

15The Panel found the Member to have breached subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) essentially provides that it is the duty of a teacher to exemplify a number of moral virtues and to act as positive role models. By intimidating students and making them feel uncomfortable in his presence, and by crossing clear professional boundaries with students, the Member abused his unique position of trust and authority and failed to fulfill his duties as a teacher.

16The Panel found the Member to have breached subsection 1(18) of Ontario Regulation 437/97, in that he committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Member failed to demonstrate good professional judgment and his conduct involved moral failing. He ought to have known not to cross professional boundaries with Student 1, especially after receiving training in 2015, a letter of expectations and having safety plans implemented to reduce his contact with Student 1. However, he continued to flout professional boundaries, without any regard for how uncomfortable it would make Student 1 feel. Similarly, the Member’s physically abusive conduct towards Student 2, and his failure to appropriately address the student’s legitimate question about a grade he received for a class presentation amount to disgraceful, dishonourable or unprofessional conduct. The Member ought to have used appropriate teaching strategies to address the student’s concerns.

17The Panel found the Member to have engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97, with regard to his behaviour towards Student 1 and Student 2. Parents, students, and the public at large expect that teachers will act professionally and in students’ best interests. The Member failed to do so when he inappropriately interacted with students, breached professional boundaries and failed to prioritize students’ well-being over his own. The Member’s conduct has undermined the public’s confidence in, and the reputation of, the teaching profession as a whole.

F. PENALTY Decision

18The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 9, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference, and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six (6) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) prior to resuming or beginning any teaching position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary violations, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

19The 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.⁵ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Costigan, 2021 ONOCT 115, and Ontario College of Teachers v. Dinglasan, 2022 ONOCT 43.

20The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct, the many repeated incidents involving hundreds of emails and several instances of driving Student 2 home, the negative impact that the Member had on the students’ well-being, and the fact that the Member was advised to change his inappropriate behaviour multiple times, yet he chose not to (Exhibit 2B). In terms of mitigating factors, the Member did not contest his misconduct, which saved the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

21The Panel finds that the Member’s pattern of inappropriate conduct, despite warnings from the School and the Board, warrants a reprimand. Members are supposed to foster a safe and supportive learning environment for students, not touch students inappropriately or act inappropriately to make students feel uncomfortable. 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.

22Given the nature and severity of the Member’s misconduct, the Panel finds that a six-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 November 24, 2022, which is 15 days after the Panel’s Decision and Order.

23The Panel finds that the courses of instruction regarding boundary violations 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.

24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Prior to the withdrawal of the sexual abuse allegation noted in paragraph (d) of the Notice of Hearing, the Panel ordered a publication ban pursuant to subsection 32.1(4) of the Act. The publication ban shall remain effective to protect Student 2’s identity.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3Allegation withdrawn at the request of College Counsel.
4. 4On January 20, 2022, the College by-laws were amended. Section 32 of the by-laws was renumbered to section 26.
5. 5See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.