DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Gino Angelo Borean, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
GINO ANGELO BOREAN (REGISTRATION #522300)
PANEL: Wanda Percival, OCT, Chair
Damienne Lebrun-Reid
Brian Serafini, OCT
HEARD: February 18, 2022
Noam Uri, for the Ontario College of Teachers
Lauren Sheffield, for Gino Angelo Borean
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 February 18, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Gino Angelo Borean (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION ban
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing. College Counsel advised that the publication ban would apply to the identities of Students 1, 2 and 3, all of whom are under 18 years of age.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated June 13, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Gino Angelo Borean 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);1
(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(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, 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);2
(h) 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 2), which provides the following:
Gino Angelo Borean 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.
At all material times, the Member was employed by the Hamilton-Wentworth District School Board (the “Board”). During the 2016-2017 academic year, the Member was employed by the Board as a [XXX] teacher at [XXX] School [XXX] in Hamilton, Ontario. During the 2017-2018 academic the Member was employed by the Board as a [XXX] teacher at [XXX]School [XXX] in [XXX], Ontario.
During the 2016-2017 academic year, Student 1 and Student 2 were male students in the Member’s Grade [XXX] [XXX] class. During the 2017-2018 academic year, Student 3 was a male [XXX] student in the Member’s class.
[XXX]During the 2016-2017 academic year, the Member yelled at his Grade [XXX] [XXX] class and made inappropriate comments, including calling students “jerks”.
On a number of occasions during the 2016-2017 academic year, the Member did not allow students to go to the bathroom during the first and last 10 minutes of the period and/or did not allow more than one student at a time to go to the washroom. These rules were communicated to all staff by the School Administration. The Member did not refuse to let students go to the washroom if it was obviously necessary.
On or about June 8, 2017, during Grade [XXX] [XXX] class the Member:
(a) continued to ring a [XXX] as part of the class lesson after Student 1 had just asked the Member to stop using the [XXX] near his desk as he did not feel well and/or had a headache; and
(b) touched Student 2’s chin, pulled it upwards, got near Student 2’s face and yelled at him and redirected him back to his seat, which caused Student 2 to be scared and upset.
The Hamilton Police Service investigated the matter and decided not to charge the Member. The Children’s Aid Society of Hamilton (the “CAS”) investigated and made no finding with respect to Student 1, did not verify risk of harm to Student 2 and found that the Member did not intend to harm Student 2 during the situation described in paragraph 6(b) above. The CAS specifically found that there was no risk of emotional harm to any student.
On June 12, 2017, the Member was assigned home with pay pending the Board’s investigation. On December 20, 2017, the Board issued the Member a written warning. The Board required the Member to complete a classroom management course, which was done by November 21, 2017.
[XXX]On or about December 21, 2017, the Member fell asleep during instructional time while his [XXX] students were watching a video.
On or about December 22, 2017, Student 3 had kicked another student for sitting in his chair. The Member took hold of Student 3 by both hands and lifted him off the floor to stop him from continuing to kick the other student. Student 3 was scared of the Member after this incident.
On occasion during the 2017-2018 academic year, the Member was on his cell phone during instructional time. The Member used his cell phone device to log onto the classroom iPad and research resources for student related materials. The Member on occasion answered text messages in the event of emergency.
On December 22, 2017, the Member was assigned home with pay pending the Board’s investigation. The Board issued the Member a letter of discipline on February 21, 2018. The Member was suspended without pay for one (1) day.
Teaching History
The Member has continued to be employed by the Board since the time period referred to herein. The Member’s teaching history subsequent to the events described herein has been without incident.
The Member has no prior history of complaints and/or discipline at the College.
PLEA OF NO CONTEST
By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).
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(7.1), 1(7.2), 1(14), 1(15), 1(18 – unprofessional only), and 1(19).
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the 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 him and counsel for the College 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.
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.
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
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 as proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted the request.
7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on February 18, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 14 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 inappropriate conduct over the course of two academic years, which included yelling at students and making inappropriate physical contact with them.
9The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97 by yelling at students and making inappropriate comments towards them, including calling them “jerks”. It is inappropriate for a teacher to yell at students, or to address students in a derogatory manner. Teachers must always be respectful and composed in their dealings with students, which the Member failed to be in this case. As such the Member’s conduct amounts to verbal abuse.
10The Member abused students physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97 by making inappropriate physical contact with them. While teaching a Grade [XXX] [XXX] class at [XXX], the Member touched Student 2’s chin, pulled it upwards, got near Student 2’s face, yelled at him and redirected him back to his seat. Moreover, while teaching [XXX] at [XXX], the Member took hold of Student 3 by both hands and lifted him off the floor to stop him from continuing to kick another student. The Panel finds that, by using physical force with students, the Member violated their bodily integrity and therefore engaged in physical abuse of students. Teachers must use professional and appropriate classroom management methods and avoid resorting to physical contact with students, even when addressing student misbehaviour.
11The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member’s physical contact with Student 2 and Student 3 as described above, made them feel scared and upset. Moreover, during Grade [XXX] [XXX] class, the Member continued to ring a [XXX] near Student 1’s desk after Student 1 told the Member he was feeling unwell and asked him to stop. The Panel finds that such disrespectful conduct by a teacher would reasonably have had a negative psychological or emotional impact on Student 1. The Panel therefore finds that it is emotionally abusive for the Member to engage in such inappropriate and upsetting behaviour towards Student 1, Student 2 and Student 3. The Member’s conduct therefore amounts to psychological or emotional abuse of students.
12The Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening the provisions of the College By-Laws, which set out the professional and ethical standards for the teaching profession. In particular, the Member breached the standard of practice of “Leadership in Learning Communities” and the ethical standards of “Care” and “Respect”. The standard of “Leadership in Learning Communities” requires members to promote and participate in the creation of collaborative, safe and supportive learning communities. The ethical standard of “Care” requires members to demonstrate their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice. The ethical standard of “Respect” requires members to honour human dignity, emotional wellness and cognitive development. By engaging in inappropriate physical contact with students as described above, the Member created a negative atmosphere causing students to be fearful, which is incompatible with the expectation that teachers will promote a safe and supportive learning environment. By yelling and making derogatory remarks towards students, the Member demonstrated a disregard for his students’ well-being and was disrespectful towards them. Therefore, the Member’s conduct fell below the professional and ethical standards of the teaching profession.
13The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Subsection 264(1)(b) requires teachers to encourage students in the pursuit of learning. By yelling, making derogatory remarks towards students and using physical force against students, the Member failed to create an atmosphere conducive to the pursuit of learning. Subsection 264(1)(c) is understood to mean that teachers must act as positive role models. The incident regarding Student 3 was an opportunity for the Member to demonstrate to students how to exercise restraint and how to appropriately manage conflict. By resorting to physical means to control the situation, the Member’s behaviour set a negative example for his students. In these ways the Member failed to fulfil the duties of a teacher.
14The Member’s conduct was unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Unprofessional conduct includes conduct that demonstrates a disregard for a member’s professional obligations and a failure to demonstrate sound professional judgment. The Member demonstrated poor professional judgment by engaging in inappropriate conduct towards students as described above. Members are also responsible for the safety of students under their professional supervision. By falling asleep while teaching his [XXX] class, as well as using his cellphone during instructional time, the Member also failed to meet his professional obligations. The Panel accepts the parties’ joint submission that the subsection 1(18) finding should be limited to unprofessional conduct only. The Member’s conduct was not disgraceful or dishonourable as there was no element of moral failing or deceit by the Member in this case.
15The Panel finds that the Member’s inappropriate conduct as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Conduct that includes unnecessary physical contact with students undermines the reputation of the teaching profession and violates the trust that parents, students, and the public place in teachers.
F. PENALTY Decision
16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 18, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:
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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:
(a) within 120 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 classroom management and anger management, 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 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
17The 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. McCracken, 2021 ONOCT 141, Ontario College of Teachers v. Allen, 2021 ONOCT 74, and Ontario College of Teachers v. Gulamhusein, 2019 ONOCT 101.
18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are: (1) the fact that the Member’s conduct involved several students over two academic years; (2) the Member’s conduct caused emotional harm to students; and (3) the Member failed to correct his behaviour despite having received a written warning from the Board regarding his conduct at [XXX]. The mitigating factors in the Member’s case are: (1) the Member did not contest his misconduct, saving the time and expense of a contested hearing; (2) the Uncontested Facts demonstrate that the Member has been teaching without reported incident since the time of the events described herein; and (3) the Member has not previously been the subject of discipline proceedings at the College. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
19The Panel finds that the Member’s inappropriate classroom management, which continued despite a warning from the Board, warrants a reprimand. Members are expected to provide a safe and supportive learning environment for students. They must also behave professionally with students, even when faced with challenging student behaviour, which the Member failed to do by yelling and making inappropriate physical contact with students. 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.
20Given the nature and severity of the Member’s conduct, the Panel finds that a three-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 March 5, 2022, which is 15 days after the Panel’s Decision and Order.
21The Panel recognizes that the Member completed a classroom management course in November 2017. Given the repeated nature of his misconduct and the parties’ Joint Submission on Penalty, the Panel finds that further coursework regarding classroom management and anger management will assist in the rehabilitation of the Member and will help to ensure the physical and emotional safety of students. 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. The coursework should provide the Member with a clear understanding of how to manage his classroom without resorting to the use of physical force as well as address how to behave professionally and respectfully with students.
22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: February 24, 2022
Wanda Percival, OCT Chair, Discipline Panel
Damienne Lebrun-Reid Member, Discipline Panel
Brian Serafini, OCT Member, Discipline Panel