Ontario College of Teachers v. Lehman, 2022 ONOCT 25

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Lehman 2022 ONOCT 25

Date: 2022-03-10

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 Mark Paul Lehman, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS – and – MARK PAUL LEHMAN (REGISTRATION #606124)

PANEL: Wanda Percival, OCT, Chair Brian Brophey Kirby Chown, OCT

HEARD: March 4, 2022

Ava Arbuck, for the Ontario College of Teachers Jerry Raso, for Mark Paul Lehman Erica Richler, 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 the person who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on March 4, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Mark Paul Lehman (the “Member”) did not attend the hearing but 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.

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

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated February 24, 2020 (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 abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(b) 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;¹

(c) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(d) 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);

(e) 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); and

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

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Mark Paul Lehman 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 [XXX] School Board (the “Board”) as a [XXX] teacher at [XXX] (the “School”).

3. During the 2014-2015 academic year, Student 1 was a Grade [XXX] female student at the School.

4. During the 2014-2015 academic year, Student 2 was a Grade [XXX] female student at the School.

Inappropriate Personal Relationships with Student 1 and Student 2

5. Student 1 was a student in the Member’s class during the 2013-2014 academic year when she was in Grade [XXX]. Throughout the 2014-2015 academic year when Student 1 was in Grade [XXX], Student 1 saw the Member as a confidant and confided in the Member at School about issues of a personal nature. They also exchanged numerous electronic messages of a personal nature unrelated to school and outside of school hours.

6. In the fall of 2014, Student 1 sought the Member’s advice regarding an intimate subject related to her health and well-being. Although the Member did not have any professional expertise in this area, he discussed the intimate issue with Student 1, sharing personal health information and offering his advice. The Member kept their conversation private. He did not offer or assist Student 1 to find professional help and support, and did not advise Student 1’s parents or School administrators of Student 1’s concerns and his advice.

7. In the fall of 2014, the Member gave Student 1 money so that she could purchase a bus ticket to visit her boyfriend in a different city over the December holiday break, without regard to whether Student 1’s parents were aware of or approved of her plan. Student 1 was [XXX] years of age. The Member did not contact Student 1’s parents before or after he gave Student 1 the money in order to discuss the issue or to obtain their permission, and he did not raise the issue with School administrators.

8. Student 1 used the money given to her by the Member in order to purchase a sex toy at the mall. Student 1 texted the Member to tell him she purchased the sex toy. When the Member learned of the purchase, he did not advise School administrators or Student 1’s parents.

9. Throughout the 2014-2015 academic year when Student 2 was in Grade [XXX], she hung out regularly in the Member’s classroom and discussed issues of a personal nature with the Member.

10. On or about December 23, 2014, the Member made arrangements to drive Student 1 and Student 2 in his personal vehicle to a local tattoo parlour, in order for Student 2 to get a tattoo. The Member’s [XXX] accompanied them. The Member had assisted Student 2 with the design of the tattoo, without any knowledge of whether her parents would approve. He and his [XXX] stayed with Student 1 and Student 2 during the tattoo procedure. The Member assisted Student 2 with paying for the tattoo at the end of the procedure, then drove Student 1 and Student 2 home. The Member did not contact Student 2’s parents to inform them or to obtain their permission regarding the tattoo.

11. In February 2015, someone informed Student 1’s parents that they had observed Student 1 enter the Member’s vehicle on December 23, 2014. Student 1’s parents also learned of the purchase Student 1 made with funds provided by the Member. Student 1 texted the Member over the weekend of February 21-22, 2015, to advise him that her father intended to speak with School administrators about these issues. The Member alerted his Principal and offered explanations for both situations, but was not forthright with his Principal and the Board regarding his communications with Student 1, and the reasons for providing her with money.

12. On or about February 23, 2015, after speaking with Student 1’s parents, the Principal and Vice Principal cautioned the Member about texting students, about giving rides to students, and about getting too close to students.

13. On or about March 31, 2015, during a conversation at School in which Student 1 and Student 2 told the Member about their recent sexual activities, the Member engaged in discussions of an intimate nature with these students in which he expressed concerns regarding their promiscuity. He drew up a “celibacy contract” for both students to sign, whereby they agreed to refrain from engaging in sexual activity. The Member did not notify School administrators or the students’ parents regarding concerns related to the students’ health and wellbeing.

Inappropriate classroom management and conduct with students

14. During the 2014-2015 academic year, the Member engaged in inappropriate classroom management and inappropriate conduct when he:

(a) allowed students to hang out in his classroom while he was teaching;

(b) permitted students to leave their belongings in his room instead of their lockers;

(c) gave students sums of money when they asked;

(d) discussed personal issues, exchanged electronic messages, and socialized with students outside of school hours and school-related issues;

(e) kept birth control medication belong [sic] to Student 1 and other female students locked in a safe in his School desk, and required the students to go through him in order to obtain their medication.

Board Investigation

15. On January 26, 2016, the Board terminated the Member’s employment. Attached hereto and marked as Exhibit “B” is a copy of the Board’s January 26, 2016 letter to the Member.

16. The Member grieved the termination of his employment. The Member testified during the arbitration hearing. He admitted that he “lost sight of appropriate boundaries with students” and fabricated information he provided to his Principal and the Board, among other admissions. The Board’s termination of the Member’s employment was upheld.

GUILTY PLEA

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

18. 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(7.2), 1(14), 1(15), 1(18), and 1(19).

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 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.

20. 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

7Counsel 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(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 stated that the Panel’s permission to withdraw the sexual abuse allegation was being sought because, in the College’s view, the evidence did not reasonably support a finding of this allegation. The Panel granted the request.

8Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on March 4, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

9The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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 engaged in inappropriate personal relationships with students and did not properly manage his classroom.

10The Panel finds that the Member psychologically or emotionally abused a student or students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. Psychological or emotional abuse typically refers to behaviour that can seriously interfere with a student’s cognitive, emotional, psychological or social development. The Panel places great weight on the Member’s admission of guilt on this head of misconduct and notes that as a teacher in a position of trust and authority, the Member was required to engage with students in a way that maintained proper boundaries, to ensure their psychological and emotional well-being and healthy development. The Member’s conduct as described in the Agreed Facts demonstrates that the Member encouraged unhealthy, intimate and personal relationships with students and an unacceptable dependence on him, when he:

• discussed personal issues and exchanged numerous electronic messages of a personal nature with students, including Student 1 and Student 2, and including outside of school hours;

• regularly hung out with students in his classroom;

• socialized with students outside of school hours;

• gave students sums of money when they asked;

• gave, without first notifying her parents, Student 1 money to buy a bus ticket to visit her boyfriend who lived in a different city and did not notify School administrators or Student 1’s parents when he learned she had purchased a sex toy with that money;

• drove Student 2 to a tattoo parlour to get a tattoo which he helped her pay for and assisted her with its design, without contacting or informing her parents about the tattoo;

• drew up a “celibacy contract” for Student 1 and Student 2 to sign; and

• kept birth control medication belonging to Student 1 and other students locked in a safe in his School desk and required the students to go through him in order to obtain their medication.

11Moreover, while the Member provided his advice or expressed concerns when Student 1 and Student 2 confided deeply intimate subjects with him, he did not offer to help them find professional help and did not advise their parents or School administrators about his concerns and advice. His failure to do so endangered Student 1 and Student 2, as it did not ensure that Student 1’s and Student 2’s cognitive, emotional, psychological or social development and well-being were being properly supported.

12The Member’s conduct demonstrates a failure to comply with the Ethical Standards for the Teaching Profession, outlined in section 32.02 of the College’s by-laws, contrary to subsection 1(14) of Ontario Regulation 437/97.³ Among other things, the ethical standards require members: to express their commitment to students’ well-being through professional judgment (“Care”); to honour human dignity, emotional wellness and cognitive development (“Respect”); to be trustworthy in their professional relationships with students, parents and guardians, by embodying openness and honesty (“Trust”); and to conduct themselves reliably and morally (“Integrity”). Stated another way, the Ethical Standards for the Teaching Profession require members to exercise professional judgment when providing support to their students and not to betray the confidence placed in them by parents and guardians to ensure their children’s safety and well-being.

13The Member did not abide by these ethical standards when he actively encouraged Student 1 and Student 2, who were in Grade [XXX], to engage in mature behaviours that could have endangered them by: giving Student 1 money for a bus ticket to visit her boyfriend who was in a different city; accompanying Student 2 to get a tattoo, designing the tattoo with Student 2, and helping her pay for the tattoo; and further, by not ensuring Student 1 and Student 2 had their parents’ permission to engage in these behaviours. Additionally, the Member was not initially forthright with his Principal and the Board regarding his communications with Student 1 and the reasons for providing her with money. He also continued to speak to Student 1 and Student 2 about intimate, personal subjects (namely, their sexual activities) after being cautioned by the Principal and Vice Principal about getting too close to students. He drew up a “celibacy contract” for them but did not notify School administrators or their parents regarding concerns for the students’ health and well-being. The Member clearly did not act in an honest and reliable manner on these occasions. His behaviour therefore failed to meet the standards of the profession.

14The Member’s conduct as described above also contravenes subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97 which sets out the duties of a teacher. In particular, the Member contravened section 264(1)(c) of the Education Act, which is commonly understood as requiring teachers to set a good example for students by encouraging and demonstrating strong values. This also includes setting proper boundaries with students to maintain a professional relationship with them. It is incumbent on teachers to set proper boundaries, given the differential power they hold over students and their relative maturity. The Member, on the other hand, conducted himself in an inappropriate manner in his interactions with his students, allowing them to hang out in his classroom while he taught, permitting them to leave their belongings in his room instead of their lockers, socializing with them outside school hours, exchanging electronic messages with them that did not relate to school, giving them money, and discussing personal intimate topics with them both inside and outside of school hours. He did not model appropriate student-teacher relationships for his students. Additionally, section 264(1)(e) of the Education Act requires teachers to maintain proper order and discipline in their classrooms. The Member failed to do so as outlined above.

15The Panel finds that the Member’s behaviour was disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members of the teaching profession are expected to maintain appropriate and professional boundaries with students and to exercise professional judgment in their interactions with students at all times. The Member’s repeated inappropriate behaviour, even after being cautioned by his Principal and Vice-Principal about getting too close with students, demonstrates a complete lack of professional judgment and flagrant disregard for his professional obligations that extends beyond being “unprofessional”. The Member was not forthright about his communications with and reasons for providing money to Student 1, and did not share concerns about Student 1’s and Student 2’s welfare with either their parents or the administration. As such, his misconduct involved an element of dishonesty or deceit, and brings into question the Member’s ability to practise the profession in a moral manner and is therefore also disgraceful and dishonourable.

16Similarly, the Panel finds that the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession are entrusted to be responsible in their care and stewardship of students. The public expects teachers to have the maturity to exercise good judgment and professionalism in their relationships with students. The Member’s numerous boundary violations and failure to report concerns about his students’ welfare contributes to diminishing the trust that the public can have in teachers.

F. PENALTY DECISION

17The parties submitted a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 4, 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 eighteen (18) 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 commencing or returning to teaching or any position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional boundaries, 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 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

18The 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. Gidney, 2020 ONOCT 174; Ontario College of Teachers v. Montgomery, 2018 ONOCT 4; and Ontario College of Teachers v. Duncker, 2020 ONOCT 137.

19The Panel considered the Member’s case in comparison to the cases provided. The aggravating factors in the Member’s case are that the Member’s misconduct was not a momentary lapse of judgment but was a pattern of behaviour occurring over an academic year with multiple students; the Member was not forthright when confronted about his misconduct; and the Member persisted in his boundary violations and misconduct even after being cautioned by the Principal and Vice-Principal for getting too close to students. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and sparing witnesses from having to testify at a hearing. Additionally, the Member 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.

20The Panel accepts the joint submission that the Member’s misconduct warrants a reprimand. Teachers are entrusted to be professional in their relationships with students and to advise parents when there are concerns about students’ well-being. 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.

21Given the nature and severity of the Member’s misconduct, the Panel accepts that an 18-month suspension is reasonable and appropriate. The misconduct represented in the cases provided by College Counsel is of a similar underlying nature and the cases support the conclusion that a lengthy 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 it 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 19, 2022, which is 15 days after the Panel’s Decision and Order.

22The Panel finds that the course of instruction regarding professional boundaries 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. The course will be pre-approved by the Registrar, and a report will be provided to the Registrar confirming the Member’s successful completion of the course.

23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2As of January 20, 2022, section 32 has been renumbered to section 26 of the by-laws.
3. 3The College’s by-laws were recently revised. As of January 20, 2022, the Ethical Standards for the Teaching Profession are found in section 26.02 of the College’s by-laws.