DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Duncan 2022 ONOCT 26

Date: 2022-02-28

DECISION ON FINDING AND REASONS FOR DECISION

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

Ryan Michael Duncan, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RYAN MICHAEL DUNCAN (REGISTRATION #492019)

PANEL: Irene Dembek, OCT, Chair Rebecca Forte, OCT Tom Potter

HEARD: November 26, 2019 and September 14, 2021

Andrew Matheson, for the Ontario College of Teachers

Ryan Michael Duncan, self-represented (present on November 26, 2019 only)

Julie Maciura and Rebecca Durcan, 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 matter was heard before a panel of the Discipline Committee (the “Panel”) on November 26, 2019 at the Ontario College of Teachers (the “College”). The hearing was subsequently adjourned and continued electronically on September 14, 2021 in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2Two Notices of Hearing dated September 11, 2017 (Exhibit 1) and February 5, 2019 (Exhibit 1A) were served on the Member, specifying the allegations and requesting his presence on a date to be determined for the hearing. The hearing with respect to the allegations set out in both Notices of Hearing was subsequently set for November 26, 2019. The parties agreed to proceed with a single hearing to address the allegations of professional misconduct set out in both Notices of Hearing.

3Ryan Michael Duncan (the “Member”) attended the hearing on November 26, 2019 and was self-represented. After hearing evidence of the College and after giving his own testimony on that date, the Member requested an adjournment so that he could provide medical documents to the Panel, and for submissions on liability. The Member’s request was granted and the hearing was scheduled to continue electronically on April 21, 2021. On April 21, 2021, the Member requested, and was granted, another adjournment of the hearing. Accordingly, the matter was adjourned to September 14, 2021 to allow the Member to provide further evidence and for submissions on liability.

4On September 14, 2021, the Member did not attend the continuation of the hearing. On this day, College Counsel submitted the Affidavit of Daniela Spano (Exhibit 7) affirmed on September 13, 2021, to show that the Member had communicated with the College to advise that he would not be able to attend the hearing on September 14, 2021 because he planned to attend a course on the day of the hearing. Other than this evidence from the College, the Panel did not receive a motion from the Member requesting an adjournment or any evidence in support of that motion. Based on this affidavit, the Panel was satisfied that the Member had been properly served with all the necessary documents in advance of this hearing date and was aware of the time and date of the hearing. The Panel was not satisfied that the Member’s communication with the College about attending a course was sufficient justification to adjourn this hearing. Therefore, the Panel proceeded with the continuation of the hearing in the absence of the Member.

5At the conclusion of the hearing on September 14, 2021, the Panel reserved its decision. For the reasons that follow, the Panel finds that the College has proven on a balance of probabilities that the Member engaged in professional misconduct contrary to subsections 1(5), 1(7), 1(7.2), 1(15), 1(18), and 1(19) of Ontario Regulation 437/97. The Panel finds that the College failed to prove that the Member engaged in professional misconduct contrary to subsection 1(14) of Ontario Regulation 437/97.

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 September 11, 2017 (Exhibit 1) are as follows:

IT IS ALLEGED that Ryan Michael Duncan is guilty of professional misconduct as defined in the Act in that:

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

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

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

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Ryan Michael Duncan is a member of the Ontario College of Teachers.

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

3. At all material times the Member was a teacher of Students 1, 2, 3, and 4.

4. At all material times Student 1 was a female student at the School, Student 2 was a female student at the School, Student 3 was a male student at the School, and Student 4 was a female student at the School.

5. During the 2013/2014 and 2014/2015 academic years, the Member:

(a) shouted and/or yelled at students;

(b) refused to permit a student to contact a parent about a vaccination, contrary to School protocols;

(c) allowed or required a student or students to leave his classroom without following School protocols.

6. During the period from January 2014 to April 2014, the Member:

(a) paid inappropriate attention to Student 1 and/or Student 2;

(b) engaged Student 1 and/or Student 2 in inappropriate conversations;

(c) told Student 1 and/or Student 2 to do breathing activities;

(d) looked at Student 1’s chest while Student 1 performed the breathing activity.

7. On or about October 7, 2014, the Member made disparaging comments to a student or students about another staff member.

8. In or about May to June 2015, the Member made inappropriate, threatening, and abusive comments to a student or students, including, but not limited to:

(a) telling Student 3, “I am not going to punish the whole class anymore, I’m going to gun you down individually”, or words to that effect;

(b) telling a student or students, “Until someone answers, I will shove a bat in your face ‘til they answer”, or words to that effect;

(c) telling Student 4 that she was “disgusting”, or words to that effect;¹

(d) telling a student or students that he would bring a bat and beat them, or words to that effect.²

9. The Peel Children’s Aid Society initiated an investigation into the Member’s conduct and concluded that the Member’s actions and behaviour placed students at risk of emotional harm.

10. The Member’s employment with the Board was terminated on or about October 14, 2016.

8The allegations against the Member in the Notice of Hearing dated February 5, 2019 (Exhibit 1A) are as follows:

IT IS ALLEGED that Ryan Michael Duncan is guilty of professional misconduct as defined in the Act in that:

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

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

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

(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(e) 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);

(f) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Ryan Michael Duncan is a member of the Ontario College of Teachers.

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

3. During the 2015-2016 academic year, the Member taught a Grade [XXX] [XXX] class.

4. In September and/or October 2015, the Member used inappropriate language and/or threatened violence towards and/or in front of students, including:

(a) “If I put a gun to your head, you would line up faster”;³

(b) “How would you like it if I threw you down the stairs?”;

(c) “If I brought a bomb to school, no one would be leaving the class so fast”.⁴

5. On or about October 1, 2015, the Member made inappropriate comments, including but not limited to:

(a) “Don’t hate me. The person you should hate is Ms. Rizos.”;

(b) “I bet none of you has the guts to tell my boss what I’m doing wrong.”;

(c) “Are you trying to get me fired?”

(d) “If you guys are going to push me, then I’m going to push back 100 times harder.”

(e) “I can tell you that you’re all going to get zeros.”;

(f) “If you say my name one more time, I am going to fail you.”

6. On or about October 7, 2015, the Member:

(a) sent a group of students down to the office after an interaction in the classroom without signing their agendas as required by the school’s policy;

(b) said “Don’t blame me if you are bored, blame Ms. Rizos, she is making me do this.”;

(c) provided an inappropriate assignment and/or refused to provide clarification on an assignment involving the [XXX].⁵

7. On or about October 8, 2015, the Member:

(a) refused to allow a student and/or students to leave the classroom when it was appropriate and/or necessary for them to do so;

(b) refused to allow a student and/or students to leave the classroom to go to the washroom, saying “no, you’ve tried to escape six times. You’re scamming me. Sit down.”;

(c) sent a student to the office without signing the student’s agenda, or following the School “On-site mediation policy”;

(d) after students sought clarification regarding a [XXX] assignment, responded by rolling his eyes, yelling and walking away from them saying: “If you don’t like it, go to the office.”;⁶

(e) did not provide an explanation of an assignment to students and/or sent students to the front foyer when they were unable to work on the assignment.⁷

8. The Member’s employment with the Board was terminated on or about October 14, 2016.

C. THE MEMBER’S PLEA

9The Member denied the allegations set out in the two Notices of Hearing.

D. THE EVIDENCE

(1) The College’s Evidence – Maria Kalantzakos

10The College called Maria Kalantzakos to provide testimony regarding her investigation of the Member while she was the principal at the School. The College further sought to qualify her as a participant expert on the standards of the profession, and specifically on “appropriate communications with students, boundaries with students, and classroom management” for her opinion on whether the Member complied with the standards of the profession through his conduct. The Member did not object to qualifying Principal Kalantzakos as a participant expert, but he also did not explicitly consent to the Panel qualifying her as such. Therefore, the Panel will provide reasons for qualifying Principal Kalantzakos as a participant expert, followed by a review of Principal Kalantzakos’ evidence.

(a) Analysis Regarding Expert Witness Evidence

11Principal Kalantzakos was qualified as a participant expert on the standards of the profession, including in particular: appropriate communication with students, boundaries with students, and classroom management.

12Expert evidence is admissible on matters requiring specialized knowledge. A participant expert is a particular kind of witness that is generally introduced as an exception to the general rule that confines witness testimony to observation only. In qualifying a witness as a participant expert, the Panel must first determine whether the expert opinion itself is admissible. Then, the Panel must determine whether the witness is properly qualified as a participant expert.

13The test to determine whether Principal Kalantzakos’ expert opinion is itself admissible was established in the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and R. v. Abbey, 2009 ONCA 624. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court of Canada further clarified the analysis for admissibility of expert evidence. This test is a two-step inquiry. The first step is the threshold requirement, where the Panel must determine whether the evidence is relevant, necessary, and whether the expert witness is properly qualified. If these threshold requirements are met, the second step is for the Panel to balance the potential risks of admitting the expert evidence with the benefits of admitting it in the particular case.

14The test to determine whether an expert is properly qualified as a participant expert is outlined in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”). The test first involves a determination of whether the witness’ opinion is based on their own observation of or participation in the events at issue in the hearing. Then, the test requires the Panel to determine if the witness formed their opinion as part of the ordinary exercise of their skills, knowledge, training and experience while observing or participating in the events at issue. If the witness’ opinion was based on their own observation or participation and they formed their opinion as part of the ordinary exercise of their skills, training, and experience, then they are properly qualified as a participant expert. When an expert is qualified as a participant expert, the party seeking to admit the evidence of that expert does not need to disclose a report regarding that witness’ evidence (see: Westerhofat para. 62).

15At the time that she gave her evidence, Principal Kalantzakos had been an administrator for approximately 12 years. She was a vice-principal for five of those years and worked as a principal since September of 2012. During her time as an administrator, she supervised teachers and other school staff and ensured that they complied with Board policy, Ministry of Education guidelines, and College standards. She also evaluated teachers based on their compliance with these standards and investigated complaints about teachers. Principal Kalantzakos supervised the Member from September 2013 until October 2016. During that time, she had the opportunity to observe the Member’s teaching and to investigate complaints about the Member made by his students. The College called Principal Kalantzakos to provide opinion evidence as to whether the Member maintained the standards of the profession.

16Under the first line of inquiry, the Panel must determine whether the evidence of Principal Kalantzakos is relevant, necessary, and whether Principal Kalantzakos is a properly qualified expert in the standards of the profession, given her knowledge and experience on the subject. The Panel finds that the evidence of Principal Kalantzakos is clearly relevant to the allegation that the Member failed to maintain the standards of the profession.⁸ The evidence of Principal Kalantzakos is also necessary for the Panel to determine this issue. The Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”) states that if the College seeks a finding that the Member has failed to comply with the standards of the profession, the College needs to tender expert evidence of the standards of the profession, unless the conduct is so notorious and so obviously contrary to the standards (such as physical or sexual abuse) that expert evidence is not required. As the allegations in this case do not rise to the level of “notorious” conduct as contemplated in Novick, the College is required to call expert opinion evidence on whether this conduct was contrary to the standards of the profession. The Panel finds that Principal Kalantzakos is properly qualified as an expert in the identified standards of the profession. Principal Kalantzakos is an experienced administrator who has evaluated many teachers regarding their compliance with the standards of the profession. As such, she is knowledgeable on the subject and capable of providing an opinion as to whether the Member’s conduct was contrary to the identified standards of the teaching profession.

17Under the second line of inquiry, the Panel must balance the potential risks of admitting the evidence of Principal Kalantzakos with the benefits. The Panel did not receive any evidence regarding the prejudicial effect of Principal Kalantzakos’ evidence and can find none. Her evidence was not expected to be unduly complicated, nor was it expected to take a long time. Additionally, the evidence of Principal Kalantzakos is not so granular as to distract from the main issues in this hearing. The Panel therefore found that the probative value of Principal Kalantzakos evidence is much greater than its prejudicial effect and as such, accepted that she should be qualified as an expert witness in this hearing.

18Finally, the Panel finds that Principal Kalantzakos investigated the Member and formed her opinion as part of the ordinary exercise of her role as the principal at the School. As such, she is properly qualified as a participant expert in the identified standards of the teaching profession in this case.

(b) Testimony of Maria Kalantzakos

19Principal Kalantzakos was the principal at the School from the 2012-2013 academic year until December 2017. During the 2013-2014 and 2014-2015 academic years, Principal Kalantzakos investigated the complaints that form the basis of the allegations in this hearing. As part of her investigation, she interviewed students in the Member’s class, met with Student 1 and Student 2’s parents, interviewed the Member, wrote reports of the steps that she took as part of her investigation, and reported the issues to her superiors at the Board.

20On April 25, 2014, Principal Kalantzakos interviewed Student 1 and Student 2, who were [XXX] in the grade [XXX] [XXX] at the school. The [XXX] were in the same grade but not in the same class. Student 1 and Student 2 were involved in a [XXX] club that the Member was assisting with. The two girls reported that they attended a meeting for a different club and missed a meeting with the [XXX] club as a result. After Student 1 and Student 2 missed this meeting, the Member became angry with Student 1 and Student 2, told Student 1 that she deserved to get punished for missing a [XXX] club meeting and said words to the effect of “I should punch you on the knee”. Student 2 reported that the Member punished her by making her sit with her hands on her knees and staring into the Member’s eyes. As a result of this conversation, Student 1 and Student 2 were very uncomfortable and became afraid of the Member. During this interview, Student 1 and Student 2 further reported that the Member often sat too close to them, that he was paying more attention to them than to other students, that he often looked at Student 1’s chest when he spoke to her, and that he asked them to complete various unnecessary breathing exercises during class – one of the students reported that the Member told her to “breathe harder and to smile, break, and then breathe again” and the other reported that the Member told her words to the effect of “push hard and breathe.” The students reported that they did not like this extra attention from the Member, that it made them uncomfortable, and that they were afraid of the Member as a result. Principal Kalantzakos interviewed ten other students who were in Student 1 and Student 2’s classes and Principal Kalantzakos said that all of the students confirmed that the Member spent the majority of the class with either Student 1 or Student 2 at his desk.

21On September 4, 2014, Principal Kalantzakos met with a student who reported that because he (the student) dragged a chair across the room, the Member became angry, yelled at him to put down the chair, and sent him to the office. Furthermore, the student reported that the Member refused to sign his agenda, which was required by the School’s protocol whenever a staff member permitted a student to leave the classroom. Principal Kalantzakos said she confirmed this incident with three other students who were in the Member’s class. These three students further reported that the Member often yells at students and that students are generally scared of the Member.

22Principal Kalantzakos testified about a number of meetings that she had with students in the Member’s classes during the fall of 2014 in which students reported that the Member often yelled in class, was disrespectful to students, and often made rude comments such as “you are babies, you need to be babysat”, “I didn’t know I was in kindergarten”, “if you don’t like it – there’s the door just leave”, and “would you like it if I hit you in the head with a chair? Probably not, as that would be putting my career at risk”. Principal Kalantzakos also met with parents of the Member’s students who reported that students found the Member rude and intimidating, and that the Member made their children uncomfortable in the classroom. According to one parent, the Member’s behaviour was so intimidating that their child was afraid to ask the Member a question in class.

23On October 7, 2014, a student reported to Principal Kalantzakos that the Member made the following comment about Mr. Yu, another teacher at the School: “It’s illegal to keep students from other teachers. I have been here for 11 years. I don’t think he’s better than me. You can go talk to Ms. Rizos⁹ and I can get another job”; and/or “Mr. Yu has been here for 11 years just like me. I don’t think he’s better than me. You can go talk to Ms. Rizos and I can get another job”.

24On November 11, 2014, a student reported to Principal Kalantzakos that the student had forgotten her vaccination form, and so she asked the Member for permission to contact her mother to confirm whether she had permission to get vaccinated. In response, the Member refused to give her permission to call her mother and refused to sign her agenda when she ultimately went to the office (as per the School’s protocol). When the student returned from the office, the Member yelled at her and sent her back to the office as punishment. The student was upset and crying as a result. Principal Kalantzakos testified that the School’s policy was to permit students to contact their parents if it was necessary to do so.

25Later that academic year, in late May and early June of 2015, Principal Kalantzakos interviewed several students in the Member’s grade [XXX] class who reported that the Member made threatening comments to the class. One of the students reported that the Member threatened to get a bat and hit them with it and take a gun and shoot it if they did not answer the Member’s question. Another student reported that the Member made the following comments: “I am not going to punish the whole class anymore…I’m going to gun you down individually” and “until someone answers, I will shove a bat in your face until they answer”. Some of the students also reported that the Member yelled at other students in the class for seemingly no reason, or for harmless actions such as throwing out their recycling.

26Principal Kalantzakos testified that, in the beginning of the 2015-2016 academic year, the Member’s students attended either the administration or the guidance office to make complaints about the Member almost on a daily basis. These complaints often included reports of the Member yelling, intimidating students, and creating an environment of fear in the classroom. Through Principal Kalantzakos, the Panel received records of notes made by the witness and by other administrators regarding these complaints. She testified, and made notes at the time, that students reported numerous inappropriate comments made by the Member in the classroom, including comments that were threatening to students and disparaging comments about Ms. Kalantzakos (Ms. Rizos at the time).

27Principal Kalantzakos’ notes, which were entered into evidence during her testimony, also included reports by students about the Member failing to follow the School’s discipline policy when sending students down to the office in the fall of 2015. According to Principal Kalantzakos’ notes, on October 7, 2015, the administration received a complaint that the Member sent a student down to the office because the student had yawned in the middle of the Member’s class. The Member refused to sign the student’s agenda when sending him down to the office. In response to the student yawning, the Member made a disparaging remark about the principal when he told the class “don’t blame me if you are bored, blame Ms. Rizos, she is making me do this” and “if you think this is stupid, go down and tell Ms. Rizos, but I know none of you has the guts to do it.” Principal Kalantzakos also received complaints from students that, on October 8, 2015, the Member refused to let them leave the classroom to use the washroom, or to get supplies from another classroom. When refusing to allow a student to use the washroom the Member said “you’ve tried to escape six times. You’re scamming me.” On the same day, the Member also sent a student to the office without signing their agenda.

28Principal Kalantzakos testified that, in her opinion, the Member’s actions were contrary to the standards of the profession, particularly with respect to appropriate communication with students, boundaries with students, and proper classroom management. Principal Kalantzakos testified that teachers are expected to address students in a respectful and positive manner and that they are expected to manage student behaviour using a supportive and restorative approach, in accordance with the school’s progressive discipline process. Principal Kalantzakos noted in her testimony that Member yelled at students and made numerous comments to students that were threatening and aggressive. His comments were not supportive of students and created a very unsafe, negative environment for students. Principal Kalantzakos further testified that teachers are expected to maintain professional boundaries with students and foster a positive, respectful, and safe learning environment, in accordance with the College’s Ethical Standards for the Teaching Profession. According to Principal Kalantzakos, the Member spent an inappropriate amount of time with Student 1 and Student 2, and his conduct toward them made them feel uncomfortable and afraid of him. In Principal Kalantzakos’ opinion, the Member’s conduct did not comply with the ethical standards of the teaching profession, and in particular the standards of “Care” and “Respect”. She opined that the Member failed to uphold the dignity of students and to address students with care. She further testified that the Member was not a positive role model and overall, he had a negative impact on his students through his actions. As a result of the Member’s yelling, intimidation, and inappropriate comments, students were distressed and anxious.

(2) The Member’s Testimony

29The Member testified at the hearing. He testified that he first met Principal Kalantzakos when he returned from a leave in the spring of 2012 and learned that she had been assigned as the principal of the School. The Member testified that, in the fall of 2013, the administration of the School, including Principal Kalantzakos tried to get rid of him as a teacher. The administration was not successful in getting rid of him at the time, and according to the Member, these allegations about him were part of the targeted plan to get rid of him as a teacher.

30The Member testified that he may have spent additional time with Student 1 and Student 2 during class, but that this was due to the fact that they were “lower level students” that needed additional support. One of the [XXX] had an Individual Education Plan and their parents were not overly supportive of their academic development. Therefore, he believed that it was necessary to spend additional time assisting Student 1 and Student 2 with their work. The Member’s motive in spending extra time with these students was entirely educational and he was not aware that any students were uncomfortable with this. Regarding the allegation that the Member was looking at Student 1’s chest, the Member testified that he has a form of [XXX] and as a result he looks down a lot and generally avoids eye contact. The Member explained that he did not direct Student 1 to complete a breathing exercise but simply told her to “take a breath”. Additionally, he did not deliberately look at Student 1’s chest but was simply looking down due to his [XXX].

31The Member denied the allegation that he was constantly yelling at his students, that he was a hothead or that he was reckless with his students’ feelings. He acknowledged that he may have a loud voice and he may raise his voice to be heard but maintained that he did not yell at his students on a regular basis. Regarding the allegations that he made threatening or abusive comments to students, the Member testified that he may have said something along the lines of “I’m gunning for you” in class, but that he did not mean that he was putting a gun to any student’s head. The Member denied making threatening comments to students about shoving a bat in their faces. The Member admitted that he said to a student “how would you like it if I threw you down the stairs” but testified that it was in response to a student who was laughing about a teacher being pushed down a flight of stairs. The comment was meant to show the student that it was a serious matter that should not be laughed at.

32The Member testified about the incident during which a student asked to go to the office to call her mother about a vaccination. According to the Member, the student asked to go to the office to call her mother about a vaccination form, the Member responded that she could not go to the office right at that moment but that she could go later in the morning. The student argued with the Member, to which the Member replied “just go then, but I’m not signing your agenda because I’m not authorizing you to leave”. When the student returned, she was deliberately disrespectful to the Member and in response, the Member sent her back to the office as redirection. In the Member’s view, this was not inappropriate. The Member also acknowledged that he did not permit another student to leave the classroom but this was because that student was asking to go to their locker, and not to the washroom, and the Member did not believe that it was appropriate for the student to go to their locker at that time.

33The Member acknowledged saying that a colleague of his was not better than him. According to the Member, his colleague had kept some of his students in class, which made them approximately 15 minutes late to the Member’s class. When the students came to his class late, the Member reminded the students that they should come to his class on time and that his colleague is not better than him. The Member testified that this was not meant to disparage his colleague.

34Overall, the Member testified that the 2013-2014 academic year was a horrible year and the classes that he taught that year were “basically uncontrollable”. The Member had lots of issues disciplining his students. During the same year, the students in one of his classes did not like him and worked together in an attempt to get him fired from the School.

E. SUBMISSIONS OF COLLEGE COUNSEL

35At the conclusion of the hearing, College Counsel requested that the particulars outlined in paragraphs 8(c) and 8(d) of the Notice of Hearing dated September 11, 2017 (Exhibit 1) and in paragraphs 4(a), 4(c), 6(c), 7(d) and 7(e) of the Notice of Hearing dated February 5, 2019 (Exhibit 1A), be withdrawn. The College stated that this request was being sought as the College did not call evidence to prove these particulars.

36College Counsel acknowledged that Principal Kalantzakos’ testimony was made up of entirely hearsay evidence regarding students’ reports about the Member and submitted that such evidence should be admitted pursuant to subsection 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) as it is relevant and reliable. College Counsel submitted that the notes made by Principal Kalantzakos during her investigations of the Member were made contemporaneously to the student interviews, the reports from students are consistent from one student to another, and therefore the notes are reliable evidence of the students’ reports to administration. Furthermore, the Principal was cross-examined by the Member as to the contents of her notes and the process of her investigation. College Counsel submitted that the reliability of these notes is further increased by the fact that the Member often did not, during his testimony, deny the reports made to Principal Kalantzakos, although he did provide a different version of the context surrounding the events in question or claim that students exaggerated the allegations. As such, College Counsel submitted that the hearsay evidence presented at this hearing should be admitted for the truth of its contents.

37Overall, College Counsel submitted that Principal Kalantzakos was credible, reliable, and that her evidence proves each of the allegations set out in the Notice of Hearing on a balance of probabilities. As such, the Panel should find that the Member engaged in professional misconduct as alleged.

38The Panel asked the College to make further submissions as to how the Panel should distinguish the allegations under subsection 1(5) and 1(14) of Ontario Regulation 437/97 in this case, and how the findings under those two subsections would be different. College Counsel submitted that the Panel should make a finding under both subsection 1(5) and 1(14) of Ontario Regulation 437/97 in this case. College Counsel submitted that, while the sections are connected, they are distinct. According to College Counsel, a finding under subsection 1(5) is a narrow finding typically requiring expert opinion evidence as to whether certain standards were complied with. In contrast, subsection 1(14) is broader, as it speaks to provisions in the bylaws (and other College documents) that address concepts such as “trust”, “integrity”, and “good values.” The College suggested that the Panel does not require expert evidence to make a finding under this section (although the Panel notes that an expert was called and qualified on the issues of appropriate communication with students, boundaries with students, and classroom management).

F. SUBMISSIONS OF THE MEMBER

39As the Member was not present on the final day of the hearing, he did not make final submissions regarding the evidence heard during his hearing.

G. DECISION ON FINDING

40The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

41The Panel granted the College’s request to withdraw the particulars outlined in paragraphs 8(c) and 8(d) of the Notice of Hearing dated September 11, 2017 (Exhibit 1) and in paragraphs 4(a), 4(c), 6(c), 7(d) and 7(e) of the Notice of Hearing dated February 5, 2019 (Exhibit 1A).

42Having considered the evidence, onus and standard of proof, and the submissions of the College, the Panel finds that the College has proven on a balance of probabilities that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19). The Panel finds that the College has failed to prove on a balance of probabilities that the Member engaged in acts of professional misconduct contrary to Ontario Regulation 437/97, subsection 1(14).

H. REASONS FOR DECISION

43The Panel has carefully reviewed the evidence and submissions presented in this hearing. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the two Notices of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the two Notices of Hearing.

44As stated above, the College has the burden of proving the allegations against the Member. This means that first, the College must prove that the behaviour alleged in the two Notices of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct.

45In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ evidence to accept, the Panel can consider the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence (see: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC)). The Panel can also determine credibility based on logic, common sense, and its experience.

(1) Credibility Assessment and Factual Findings

46The Panel finds that Principal Kalantzakos was a credible and reliable witness. The Panel accepts the notes made by the principal as admissible for the truth of their contents pursuant to subsection 15(1)(b) of the SPPA. Principal Kalantzakos’ notes were contemporaneous to the interviews held with students. Additionally, the students’ reports about the Member were consistent with each other even though students were interviewed separately and often on different days. There was no evidence led with respect to any motivation on the part of Principal Kalantzakos to falsify her notes or to exaggerate what students told her. In the Panel's opinion, Principal Kalantzakos’ notes constitute reliable documentary evidence of the events described therein. In terms of her testimony, Principal Kalantzakos had a good memory of the events about which she testified and she was honest if she could not recall details. Her evidence was clear throughout, and consistent with the findings made by the Board following her investigation.

47The Panel had some concerns about the credibility and reliability of the Member’s testimony. The Member’s testimony lacked clarity and he was often ambiguous in his description of the events to which he testified. In the Panel’s view, the Member consistently attempted to diminish his responsibility for the allegations through his evidence. In his testimony, the Member admitted making many of the comments that are the subject of the allegations against him, but he routinely minimized the potential effects that his behaviour or comments could (and, according to Principal Kalantzakos’ testimony, did) have on his students. Additionally, the Member often attempted to explain his conduct as a reaction to students’ or a colleague’s behaviour. Other times, the Member suggested that it was appropriate to make comments such as “I’m gunning for you” or “how would you like it if I threw you down the stairs” because the students were old enough to understand that he was not actually threatening them. He also attempted to bolster his own credibility by stating that, as a teacher, he should be believed “over 100 students”. Overall, the Panel finds that the Member’s inability to clearly testify to the events and his attempts to minimize responsibility for comments that he admitted to making diminish his credibility in this hearing.

48Aside from his denial that he often yelled at students and that he made some of the alleged comments, the Member admitted that he made certain comments in the presence of students. These admissions were largely consistent with the testimony of Principal Kalantzakos.

49The Panel is not persuaded by the Member’s assertion that these allegations arose because of the Board administration’s plan to “get rid of” him. Other than the Member’s testimony about this, the Panel received no evidence of any animosity towards the Member from any members of the administration. The evidence received from Principal Kalantzakos shows that there was an overwhelming number of complaints from dozens of students between 2012 and 2015, which led to the Member being disciplined by the Board. There is no indication in the evidence that the Member was disciplined for any reason other than the complaints from students and parents.

50The Panel is similarly not persuaded by the Member’s suggestion that some of his behaviour can be explained by his medical condition. The Panel granted an adjournment so that the Member had an opportunity to provide documents confirming his reported medical condition and showing how it might affect his teaching and how it might have led to his behaviour. The Member failed to provide these documents to the Panel, and the Member did not attend the conclusion of the hearing to make submissions as to how his reported medical condition affected his behaviour. As such, the Panel is not able to place significant weight on the Member’s suggestion that his behaviour was due to a medical condition.

(a) Findings Re: Notice of Hearing Dated September 11, 2017 (Exhibit 1)

(i) The College has proven particulars 5(a)-(c) of Exhibit 1

51As stated above, the Panel finds that Principal Kalantzakos was a credible and reliable witness. Where the Member denied the allegations, the Panel prefers Principal Kalantzakos’ evidence to the Member’s. Principal Kalantzakos’ interviews with several students led her to believe that the Member shouted and yelled at students on numerous occasions, creating an atmosphere of fear in the classroom. The principal also received reports from a student that the Member refused to permit her to contact her mother about her vaccination and yelled at her when she insisted on contacting her mother. According to Principal Kalantzakos’ notes, this was also witnessed by three other students in the classroom. Similarly, the Panel accepts that the Member refused to sign a student’s agenda when he sent the student to the office, contrary to the School’s protocol. As such, the Panel finds that the College has successfully proven the allegations particularized at paragraph 5 of Exhibit 1, on a balance of probabilities; namely, that during the 2013-2014 and 2014-2015 academic years, the Member:

(a) Shouted and/or yelled at students;

(b) Refused to permit a student to contact a parent about a vaccination, contrary to school protocols; and

(c) Allowed students to leave his classroom without following school protocols.

(ii) The College has proven particulars 6(a)-(c) but not 6(d) of Exhibit 1

52Principal Kalantzakos interviewed Student 1, Student 2, and their mother regarding the Member’s behaviour towards Student 1 and Student 2. The Panel accepts the principal’s evidence, as recorded from these interviews, and finds that the Member paid inappropriate attention to these students, which made them feel uncomfortable. This inappropriate attention was also noticed by other students in Student 1 and Student 2’s classes. The Panel finds that the Member inappropriately disciplined Student 1 and Student 2 for missing a [XXX] club meeting, which made the students afraid of him. Student 1 and Student 2 reported that the Member asked them to perform breathing activities. Student 1 and Student 2’s reports to Principal Kalantzakos were detailed and made it clear that the Member asked them to “breathe hard in and out” and to “breathe harder, and to smile, and then breathe again”. The Panel accepts this evidence and is not persuaded by the Member’s evidence that he simply asked them to “take a deep breath”. As such, the Panel finds that the College has successfully proven the allegations particularized at paragraph 6(a)-(c) of Exhibit 1, on a balance of probabilities; namely, that during the period from January 2014 to April 2014, the Member:

(a) paid inappropriate attention to Student 1 and/or Student 2;

(b) engaged Student 1 and/or Student 2 in inappropriate conversations; and

(c) told Student 1 and/or Student 2 to do breathing activities.

53The Panel does not, however, find that the College has proven that the Member looked at Student 1’s chest while she performed the breathing activity. Although Student 1 and Student 2 reported to the principal that the Member looked at Student 1’s chest, the Panel accepts the Member’s explanation that he often looks down when speaking to people. Based on the totality of the evidence with respect to this particular allegation, the Panel finds it more likely that the Member was simply looking down and that the students thought he was looking at Student 1’s chest. The Panel is not persuaded that the Member necessarily looked at Student 1’s chest while she performed the breathing activity. As such, the Panel finds that the College has failed to prove the allegation particularized at paragraph 6(d) of Exhibit 1, on a balance of probabilities; namely, that during the period from January 2014 to April 2014, the Member:

(d) looked at Student 1’s chest while Student 1 performed the breathing activity.

(iii) The College has not proven particular 7 of Exhibit 1

54The Panel accepts Principal Kalantzakos’ evidence (and the admission of the Member) that the Member made comments to students about another teacher (Mr. Yu) on October 7, 2014 after some of his students were late arriving for his class from Mr. Yu’s; however, the Panel does not find that the comments were disparaging, as alleged at paragraph 7 of Exhibit 1. The Panel finds that the Member told students that he did not believe that Mr. Yu was better than him, and so he expects that his students arrive to class on time. The Panel is not persuaded that this comment was in any way disparaging about Mr. Yu. There is nothing disparaging about commenting that another teacher is not better than the Member. As such, the Panel finds that the College has failed to prove the allegation particularized at paragraph 7 of Exhibit 1, on a balance of probabilities; namely, that on or about October 7, 2014, the Member made disparaging comments to a student or students about another staff member.

(iv) The College has proven particulars 8(a)-(b) but not 8(c)-(d) of Exhibit 1

55The Panel accepts Principal Kalantzakos’ evidence, as reported by a number of students, that the Member made inappropriate and threatening comments to his students in May to June of 2015. The principal heard numerous detailed reports from students about the Member’s inappropriate comments. The Panel rejects the Member’s evidence that he did not make these comments to his class given the problems the Panel found with the Member's testimony as outlined above. As such, the Panel finds that the College has successfully proven the allegations particularized at paragraph 8(a) and (b) of Exhibit 1, on a balance of probabilities; namely, that in or about May to June 2015, the Member made inappropriate, threatening, and abusive comments to a student or students, including, but not limited to:

(a) telling Student 3, “I am not going to punish the whole class anymore, I’m going to gun you down individually”, or words to that effect;

(b) telling a student or students, “Until someone answers, I will shove a bat in your face ‘til they answer”, or words to that.

56The College did not seek a finding with respect to particulars 8(c) and (d), as it did not present sufficient evidence to prove this conduct on a balance of probabilities. As such, the Panel finds that the College has failed to prove the allegations particularized at paragraphs 8(c) and (d) of Exhibit 1, on a balance of probabilities; namely, that the Member told Student 4 that she was “disgusting” and that he told a student or students that he would bring a bat and beat them.

(b) Findings Re: Notice of Hearing Dated February 5, 2019 (Exhibit 1A)

(i) The College has proven particulars 4(b), 5(a)-(e) and 6(b) but not 5(f) of Exhibit 1A

57The Panel accepts Principal Kalantzakos’ evidence, which she says was reported to her by several students, that the Member often made inappropriate and threatening comments to his students in the fall of 2015. The principal testified that she heard numerous detailed reports from students of the Member’s inappropriate comments and made contemporaneous notes of these reports. The Panel notes that the Member admitted to making many of these inappropriate statements during his testimony. Overall, the Panel accepts Principal Kalantzakos’ notes as an accurate representation of the Member’s behaviour and finds that the College has successfully proven the allegations particularized at paragraphs 4(b), 5(a) - (e), and 6(b) of Exhibit 1A, on a balance of probabilities; namely, that:

4. In September and/or October 2015, the Member used inappropriate language and/or threatened violence towards and/or in front of students, including:

(b) “How would you like it if I threw you down the stairs?”;

5. On or about October 1, 2015, the Member made inappropriate comments, including but not limited to:

(a) “Don’t hate me. The person you should hate is Ms. Rizos.”;

(b) “I bet none of you has the guts to tell my boss what I’m doing wrong.”;

(c) “Are you trying to get me fired?”;

(d) “If you guys are going to push me, then I’m going to push back 100 times harder.”; and

(e) “I can tell you that you’re all going to get zeros.”; and

6. On or about October 7, 2015, the Member:

(b) said “Don’t blame me if you are bored, blame Ms. Rizos, she is making me do this.”

58The College did not call evidence to prove that the Member said, “If you say my name one more time, I am going to fail you” as alleged in particular 5(f) of Exhibit 1A. As such, the Panel finds that the College failed to prove this particular on a balance of probabilities.

(ii) The College has proven particulars 6(a), 7(a)-(b) and part of 7(c) of Exhibit 1A

59Principal Kalantzakos’ investigation notes include reports from students that the Member did not allow students to leave his classroom when the students had legitimate reasons to leave and that, when he sent students down to the office, he did not comply with the School’s policy of signing students’ agendas. The Member also admitted that he failed to comply with this policy on several occasions. Therefore, the Panel finds that the College has proven the allegations particularized at paragraphs 6(a), 7(a) - (b) and a portion of 7(c) of Exhibit 1A, on a balance of probabilities; namely, that:

6. On or about October 7, 2015, the Member:

(a) sent a group of students down to the office after an interaction in the classroom without signing their agendas as required by the school’s policy;

7. On or about October 8, 2015, the Member:

(a) refused to allow a student to leave the classroom when it was appropriate and/or necessary for them to do so;

(b) refused to allow a student to leave the classroom to go to the washroom, saying “no, you’ve tried to escape six times. You’re scamming me. Sit down.”; and

(c) sent a student to the office without signing the student’s agenda.

60The College did not call evidence as to the School’s “on-site mediation policy” and how the Member failed to follow this policy. As such, the Panel finds that the College only proved part of the behaviour alleged in particular 7(c) of Exhibit 1A (i.e., that the Member sent a student to the office without signing the student’s agenda).

(iii) The College has not proven particulars 4(a), 4(c), 6(c), 7(d) or 7(e) of Exhibit 1A

61The College did not seek a finding with respect to particulars 4(a), 4(c), 6(c), 7(d) or 7(e) as it did not present sufficient evidence to prove this conduct on a balance of probabilities. As such, the Panel finds that the College has failed to prove these particulars.

(2) Legal Conclusions

(a) Substantiated Allegations

62The Panel finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”) states that if the College seeks a finding that the Member has failed to comply with the standards of the profession, the College generally needs to tender expert evidence of the standards of the profession, unless the conduct is so notorious and so obviously contrary to the standards (such as physical or sexual abuse) that expert evidence is not required. As noted above, the College alleged and tendered the expert opinion of Principal Kalantzakos that the following standards were breached: appropriate communication with students, boundaries with students, and classroom management.

63The Panel accepts the expert opinion of Principal Kalantzakos that the Member’s actions were contrary to these standards of the profession. By yelling at students and by making threatening and inappropriate comments to his students, and by paying inappropriate attention to Student 1 and Student 2 such that they were made to feel uncomfortable and afraid of him, the Member did not appropriately communicate with, manage, and interact with students. The Panel accepts Principal Kalantzakos’ expert opinion that the identified standards required the Member to speak and interact with students in a positive and supportive way, and that his actions were, instead, threatening and aggressive and did not consider the safety and wellbeing of his students. Principal Kalantzakos also opined, and the Panel agrees, that the Member’s behaviour and comments were contrary to the Ethical Standards for the Teaching Profession. Teachers are expected to uphold the Ethical Standards by showing compassion, acceptance, and a commitment to students’ well-being (“Care”) and by honouring their students’ human dignity, emotional wellness and cognitive development (“Respect”). The Member’s inappropriate and intimidating conduct showed a lack of care and respect for his students. As such, his actions were contrary to the Ethical Standards.

64The Panel finds that the Member verbally abused students, contrary to subsection 1(7) of Ontario Regulation 437/97. The Member frequently yelled at his students and made a number of threatening and inappropriate comments in the presence of his students. These included saying “I’m going to gun you down individually”, “I’ll shove a bat in your face ‘til they answer”, and “how would you like it if I threw you down the stairs”. Speaking to students in such an insensitive and derogatory way is unprofessional, inappropriate, humiliating, and amounts to verbal abuse of students. Members of the profession must address all students with respect and sensitivity, which the Member failed to do in this case. It is no excuse for the Member to say that the students were old enough to understand that he was not actually threatening them. Given the power imbalance that exists between students and teachers, who hold a position of trust and authority, members simply cannot make these types of abusive comments to students. Regardless of the Member’s intentions in making these comments, it was reasonable for students to interpret them as threats – particularly given the regularity with which the Member made inappropriate comments to students.

65The Panel finds that the Member psychologically or emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member’s repeated yelling created an environment of fear in his classroom where students avoided asking the Member questions for fear of reprisal. According to their reports to Principal Kalantzakos, the Member’s threatening comments about using weapons such as a gun or a bat also contributed to this environment of fear and made students scared of the Member. Additionally, the Member’s behaviour towards Student 1 and Student 2, namely, spending additional time with them during classroom time, forcing them to complete odd breathing exercises, and yelling at them for failing to attend an extra curricular activity, caused them distress. Overall, the Member’s conduct on these numerous occasions negatively impacted his students’ cognitive, emotional, psychological or social development, and therefore constitute psychological or emotional abuse.

66The Member failed to comply with the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(c) requires members to demonstrate the highest regard for a number of virtues, and it is commonly understood to mean that members must behave with integrity and act as positive role models for students. The Member failed to comply with this duty through his conduct in the classroom. The Member often yelled at students and used disturbing language in the presence of students. In doing so, the Member set a bad example for students, who should be taught to treat each other with respect and not to raise their voices at one another. The Member resorted to yelling and making inappropriate comments instead of using other effective classroom management strategies, thereby setting a poor example for students and failing to comply with the Education Act.

67The Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The teaching profession does not tolerate repeated verbal and emotional abuse of students by its members. Members are entrusted with the physical and emotional safety of children and are expected to keep their students safe, which the Member failed to do by his verbally and emotionally abusive conduct. It was entirely inappropriate for the Member to repeatedly yell at his students and to foster an environment of fear among his students and as such his conduct was clearly disgraceful, dishonourable, and unprofessional.

68Similarly, the Member’s conduct is unbecoming a member of the profession contrary to subsection 1(19) of Ontario Regulation 437/97. Through his verbal and emotional abuse of his students, the Member undermined the reputation of the teaching profession and the trust that parents, students, and the public place in teachers.

(b) Unsubstantiated allegations

69The Panel does not make a finding that the Member failed to comply with the Act or the regulations or the bylaws contrary to subsection 1(14) of Ontario Regulation 437/97. The Panel disagrees with College Counsel’s submission regarding the distinction between subsection 1(5) and subsection 1(14) as it pertains to this case and finds that it would be duplicative to make findings under both heads of misconduct. In this case, College Counsel requested that the Panel find that the Member breached subsection 1(14) on the basis that he failed to comply with section 32 of the by-laws, and in particular the ethical standards for the teaching profession that are included in the enumerated standards at section 32. In the Panel’s view, these ethical standards as codified in section 32 of the by-laws are not distinct from and, in fact, were referred to by the participant expert when opining that the Member breached the “standards of the profession” as contemplated by subsection 1(5). In the Panel’s view, making a separate finding under this head of misconduct would be duplicative and inappropriate. In the absence of focussed submissions as to how the Member’s conduct was otherwise a breach of the Act or the regulations or the by-laws, the Panel declines to make a finding that the Member’s conduct was also a breach of subsection 1(14) of Ontario Regulation 437/97.

I. PENALTY

70The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.

Footnotes

1. 1The College did not seek a finding with respect to this particular due to insufficient evidence.
2. 2The College did not seek a finding with respect to this particular due to insufficient evidence.
3. 3The College did not seek a finding with respect to this particular due to insufficient evidence.
4. 4The College did not seek a finding with respect to this particular due to insufficient evidence.
5. 5The College did not seek a finding with respect to this particular due to insufficient evidence.
6. 6The College did not seek a finding with respect to this particular due to insufficient evidence.
7. 7The College did not seek a finding with respect to this particular due to insufficient evidence.
8. 8The standards in which Principal Kalantzakos was qualified to opine were (1) appropriate communication with students, (2) boundaries with students, and (3) classroom management.
9. 9“Rizos” was Principal Kalantzakos’ last name at the time of the allegations.