Ontario College of Teachers v. Kaprusiak, 2022 ONOCT 28

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kaprusiak 2022 ONOCT 28

Date: 2022-03-21

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

Andrew Paul Kaprusiak, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW PAUL KAPRUSIAK (REGISTRATION #422689)

PANEL: Rebecca Forte, OCT, Chair Gary Pieters, OCT Anne Resnick

HEARD: July 27, 2021

Ava Arbuck, for the Ontario College of Teachers No one appearing for Andrew Paul Kaprusiak 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 proceeding was heard electronically before a panel of the Discipline Committee (the "Panel") of the Ontario College of Teachers (the "College") on July 27, 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").

2Andrew Paul Kaprusiak (the "Member") did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Annie Lacroix (Exhibit 2) affirmed on July 20, 2021, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty and costs that the College intended to seek if the Member were found guilty of professional misconduct. In this affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents pursuant to section 52(1) of the Ontario College of Teachers Act, 1996 (the "Act"), rule 2.03 of the Rules and section 9.09¹ of the College's by-laws. The affidavit demonstrates that the Member was served personally with the Notice of Hearing and disclosure brief. Subsequent documents, which included the actual date and time of the hearing, among other things, were served on the Member by registered mail, email and/or process server.

4Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and that the Member was made aware of the time and date of the electronic hearing and of the penalty and costs that the College intended to seek. Even though the Member did not acknowledge receipt of these documents, they are sufficiently given or served according to section 9.09² of the College's by-laws. The Panel therefore heard this matter in the absence of the Member.

A. PUBLICATION ban

5The Panel ordered a publication ban pursuant to subsection 32.1(3) of 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

6The allegations against the Member in the Notice of Hearing dated January 14, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Andrew Paul Kaprusiak 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);³

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

(c) 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);

(d) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Andrew Paul Kaprusiak is a member of the Ontario College of Teachers.

2. In or after 2017, the Member:

(a) took pictures of members of the public without their knowledge or consent;

(b) posted pictures of and/or offensive comments or statements about members of the public, without their knowledge or consent, on various social media outlets including Facebook and "YouTube";

(c) wrote and/or posted negative or offensive comments and/or statements on Facebook, "YouTube", and/or other forms of social media regarding members of the public, including religious or ethnic groups, without their knowledge or consent, including but not limited to statements where he:

(i) suggested members of the public and/or religious and/or ethnic groups were predators, pedophiles, pimps, prostitutes, rapists, sadists, drug users or dealers, human traffickers, murderers, and/or affiliated with gangs;

(ii) alleged that Black, Caribbean, Jewish, Chinese, and/or gay people were engaging in harassing and/or criminal activity;

(d) wrote and/or posted disparaging statements about individuals and/or groups, including statements which attributed negative characteristics based on racial or ethnic origin;

3. The Member posted a video on "YouTube" made on or about August 7, 2011, entitled "mafiacommunist insurgency".

C. THE MEMBER'S PLEA

7As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. OVERVIEW

8This case involves allegations that, in or around 2017, the Member took photos of individuals in his community without their consent, posted them to his public Facebook page and wrote defamatory captions under the photos of these individuals. The Panel's task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member's conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct. The Member contravened subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel withdrew the subsection 1(5) allegation at College Counsel's request. The Panel accepted the College's submission that a finding under both subsections 1(5) and 1(14) would be duplicative given that the College would be calling the same evidence to support findings under both heads of misconduct.

E. THE EVIDENCE

9The College presented one witness as well as video and documentary evidence in order to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel's reasons for decision below.

(1) College Witnesses

(a) Nicholas Woloszczuk

10Mr. Woloszczuk is an investigator with the College. In this role, he gathers information related to complaints made to the College against members and prepares reports in relation to these complaints to present to the Investigation Committee. Based on these reports, the Investigation Committee determines which complaints are referred to the Discipline Committee. Mr. Woloszczuk testified that he was assigned as the investigator to the Member's file on October 6, 2017.

11Mr. Woloszczuk reviewed a complaint that the Member allegedly took photos of individuals in the London community and posted them to his personal, public Facebook page with offensive and disturbing captions. It was also alleged that he recorded videos in public and posted them to YouTube with similarly offensive accusations. An anonymous public complainant ("Person A") who was a subject of one of the Member's Facebook posts reported the Member's conduct to the College. Mr. Woloszczuk testified that Person A did not know the Member. She was alerted to the Member's posts through a friend who also had no personal connection to the Member. Mr. Woloszczuk testified that Person A contacted the College regarding her concerns about the Member's behaviour after she learned that the Member was a teacher.

12Mr. Woloszczuk reviewed and assessed Person A's complaint and then took steps to initiate an investigation to gather further information. Through Mr. Woloszczuk, the College entered investigation file documents into evidence, including the College's correspondence with Person A and documents originally located and compiled by the College's Intake Coordinator, Ms. Jamie Guerra, who performed a public search of Facebook and YouTube posts and comments posted under the Member's name:

• Affidavit of Jamie Guerra, OCT affirmed on July 12, 2021 containing Exhibits A to F (Exhibit 4)
• Email Correspondence between Person A and the College dated September 20, 2017 (Exhibit 5)
• Facebook search results dated September 20, 2017 (Exhibit 6)
• YouTube search results dated September 21, 2017 (Exhibit 7)
• Email correspondence between Public Complainant and the College dated September 21-26, 2017 (Exhibit 8)
• "Facebook bans Londoner's hidden camera social posts" by Kate Dubrinski, CBC News, September 22, 2017 (Exhibit 9).

13Mr. Woloszczuk reviewed screenshots of 62 Facebook posts and comments captured and recorded by Ms. Guerra. The search results included numerous posts made by the Member on his public Facebook page which contained photos of persons taken in public venues such as a grocery store or aboard public transit who appear unaware that their photo is being taken. Ms. Guerra's search also captured screenshots of comments by Facebook users about the Member's hidden-camera postings (Exhibits 6, 9, 13, 14, 15 and 24). Mr. Woloszczuk also reviewed a news article published on September 22, 2017, that reported on public complaints to the police and to Facebook about the Member's online activities (Exhibit 9).

14Mr. Woloszczuk testified that he sought further avenues for investigation and compiled the following documents:

• Screenshots of YouTube search results dated October 19, 2017 (Exhibit 10)
• 24 YouTube videos including: "mafia/communist insurgency" (Exhibit 10A)
• General Occurrence Report from London Police Service, dated September 2017 (Exhibit 12)
• General Occurrence Report from London Police Service, dated September 2017, received June 2021 (Exhibit 13)
• Statement of Person A dated June 24, 2021 (Exhibit 24)

15Mr. Woloszczuk searched, located and took screenshots of a list of videos posted on the Member's public YouTube channel. The Panel received into evidence a timestamped list of thumbnails for 61 videos (Exhibit 10). Mr. Woloszczuk testified that he downloaded and viewed 24 of those videos for content related to the complaint against the Member (Exhibit 10A). Most of the videos that Mr. Woloszczuk viewed were a few seconds long and inscrutable. One video titled "mafia/communist insurgency" was considerably longer at roughly nine minutes and contained a description and commentary from the Member. College Counsel played this video during the hearing as part of the College's evidence.

16Mr. Woloszczuk also determined that numerous public complaints had been made to the police on September 20 and September 21, 2017, about the Member's posts and comments. General Occurrence Reports that Mr. Woloszczuk obtained and reviewed from the London Police Service indicated that several complaints similar in nature to Person A's complaint (that the Member was posting photographs of members of the public with offensive and disturbing comments) were made to police. Mr. Woloszczuk also confirmed that the police investigation did not find grounds to proceed with criminal charges against the Member, and specifically, did not find sufficient grounds to proceed on any charges related to a codified hate offence or cybercrime (Exhibit 11, Exhibit 12 and Exhibit 13).

17After completing his investigation, Mr. Woloszczuk notified the Member that the College had initiated a complaint against him, provided disclosure to the Member of the complaint received by the College and the College's investigation documents, and requested a response from the Member. The Member provided a response to the investigator:

• Member's response to OCT complaint dated June 4, 2018 (Exhibit 21).

18In his response, the Member admitted to taking pictures of members of the public without their knowledge or consent and to writing posts about the individuals he photographed because police enlisted his assistance to identify potential crime suspects in London, Ontario (Exhibit 21 at page 240). After reviewing the Member's response including his admissions, Mr. Woloszczuk concluded his investigation.

(b) Person A

19Mr. Woloszczuk conducted a videoconference interview with Person A during which she read and signed a statement to be submitted into evidence. In her signed statement, Person A described that in September 2017, she was alerted by a friend to a post on the Member's page that included a photo of her and her child. Person A was "upset and frightened" that this picture had been uploaded to Facebook by the Member without her knowledge or consent. Person A did not know the Member but when she conducted a Facebook search of the Member's name, she discovered numerous other Facebook posts by him, which contained photos of persons who appeared unaware that they were being photographed in public. Person A submitted that many of the posts she discovered were similar in that they were accompanied by "offensive or defamatory statements, for example, referring to people as pedophiles or drug traffickers, or linked to organized crime" (Exhibit 24). Person A contacted the London police and filed a report about the Member's online behaviour and posted alerts to local Facebook groups to warn others about the Member's posts. The Facebook friend who alerted Person A to the Facebook post containing her picture also alerted Person A that the Member was a teacher. This prompted Person A to contact the College about the Member's behaviour.

20With her written statement, Person A submitted several screenshots of the Member's posts as well as a news article published by the CBC (Canadian Broadcasting Corporation) on September 22, 2017, titled "Facebook bans Londoner's hidden camera social posts," which detailed that "at least 15 complaints" had been logged with the London police regarding the Member's activities on his Facebook page. The article quoted several individuals who had discovered that they had been photographed and made subjects of the Member's posts. Several individuals quoted in the news article expressed distress about being photographed and about the Member's false public accusations and use of racial slurs. Community members also described feeling unsafe because of the Member's conduct (Exhibit 24 at Tab D and Exhibit 9).

21In her statement, Person A also confirmed that she was asked to be a witness in this hearing, but that she wished to remain anonymous due to the fear that testifying in these proceedings or having her name published in the Discipline Committee's decision could cause her family to be targeted "as subjects of [the Member's future] online postings and/or other behaviour that I cannot predict" (Exhibit 24). In lieu of viva voce evidence at this hearing, Person A's written statement was witnessed and received by Mr. Woloszczuk and entered as an exhibit through Mr. Woloszczuk's testimony.

F. SUBMISSIONS OF COLLEGE COUNSEL

22College Counsel submitted that the Member's Certificate of Qualification and Registration has been suspended for non-payment of fees since 2014. His curriculum vitae indicates that he has not taught in a publicly funded school since 2006, though he lists more recent employment history as a private tutor (Exhibit 22). Even though the Member is not actively teaching, College Counsel submitted that the Member's conduct is subject to the continuing jurisdiction of the College, pursuant to subsection 14(5) of the Act.

23College Counsel reviewed the uncontradicted evidence with the Panel, including the Member's own admissions contained within his written response to the complaint dated June 4, 2018 (Exhibit 21), and submitted that the evidence should be admitted pursuant to subsection 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA"). According to College Counsel, the documents entered during Mr. Woloszczuk's testimony are highly relevant to the subject matter and prove the College's allegations of professional misconduct on a balance of probabilities. College Counsel also submitted that the Panel should give considerable weight to the Member's own admissions in this case. The Member submitted a written reply to the College after having been made aware of the complaint against him and having received disclosure of the evidence in Exhibit 6.⁴ The Member replied to the allegations in the context of that disclosure, so there is no question that his admissions to making the postings in Exhibit 6 are trustworthy. College Counsel agued that the Member's admissions and the College's documentary evidence clearly demonstrate that the Member surreptitiously took photos and recorded videos of unsuspecting members of the public and posted them to his personal social media pages.

24College Counsel argued that this is not a case of the College policing a member's free speech, which is legally protected, but a case involving speech by a member that is defamatory and not protected. In his response to the College's complaint, the Member discussed defamation. The Member refuted that he was "slanderously labeling people in the images he posted" (Exhibit 21 at page 240). While admitting to taking pictures of members of the public without their consent and posting them with offensive captions on social media, the Member justified his conduct by citing the "good Samaritan" defence. He submitted that his defamatory speech was in the public interest because he was defending ordinary citizens who have been plagued by crime in London, Ontario (Exhibit 21 at page 240).

25Even though the Notice of Hearing does not allege libel or defamation against the Member, College Counsel advanced that the Member's posts clearly contained libelous statements that targeted and defamed the individuals depicted. In civil law, defamation refers to harming someone's reputation by making false written or oral statements about a person or persons. In Ontario, under the Libel and Slander Act, R.S.O. 1990, c. L.12 ("Libel and Slander Act"), if a statement is written, this type of defamation is called libel (a defamatory statement that is spoken is called slander). The legal test for libel also requires a statement to be read by someone other than the person being defamed. The Member ascribed negative or offensive views to members of the London community, made racist remarks about them, and falsely accused them of criminal activity. College Counsel argued that the nature of the Member's posts, the fact that they were seen and commented on by members of the public, the media, and reviewed by the police meets the legal threshold in Ontario for libelous statements.

26If defamation were at issue in this proceeding, College Counsel stated that the Member would be found to have engaged in libelous speech and the Member's public interest defence would be untenable at law.⁵ By engaging in defamatory speech, the Member also committed professional misconduct. The evidence can therefore be relied upon to make findings of professional misconduct as alleged, apart from the allegation that College Counsel has requested be withdrawn.

G. DECISION ON FINDING

(1) Onus and standard of proof

27The 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.

(2) Decision

28Counsel 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. The Panel granted the College's request to withdraw the subsection 1(5) allegation, as it was duplicative of the subsection 1(14) allegation.

29Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).

H. REASONS FOR DECISION

30The 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 Notice 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 Notice of Hearing.

31As stated above, the College has the burden of proving the allegations. This means that first, the College must prove that the behaviour alleged in the Notice of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as the College alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct. The Panel notes that College Counsel referred to the Member's behaviour as "defamatory" and "libelous" speech and referred the Panel to Ontario's Libel and Slander Act; however, the Panel did not consider whether the Member's behaviour was defamatory or libelous as the legal threshold for a finding of professional misconduct under Ontario Regulation 437/97 does not require that defamation or libel be proven or disproven. The Panel therefore only considered the evidence in relation to whether the Member's behaviour constitutes professional misconduct under the heads of misconduct alleged in the Notice of Hearing.

32In 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 the witness' testimony to accept, the Panel considered the following credibility factors: the opportunity that a witness had to observe, recall and recount the events in question; whether the witness has an interest in the outcome of the hearing that affects their recollection; whether the witness demonstrates any partisanship or bias toward the side which called them as a witness; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence. The Panel can also determine the truthfulness of testimony based on logic, common sense, and its experience.

(1) Credibility

(a) College Investigator

33The Panel found Mr. Woloszczuk to be a credible witness. Even though these events occurred five years ago, his memory was clear, and his testimony was delivered logically and chronologically. His memory was consistent with the communications and documents that he authored during his investigation and that were submitted into evidence about these events. Overall, the Panel found the investigator's evidence reliable.

(2) Admissibility and Weight

(a) Documentary and Video Evidence

34The Panel accepted the documentary and video hearsay evidence entered during Mr. Woloszczuk's testimony as admissible for the truth of its contents pursuant to subsection 15(1)(b) of the SPPA.

(i) Screenshots

35Documentary evidence in the form of screenshots of photos and comments and video thumbnails taken of the Member's public Facebook page and YouTube were clearly dated, including when they were posted by the Member and when they were accessed by Ms. Guerra and Mr. Woloszczuk, which confirmed their source and authenticity. The documentary evidence was internally consistent and consistent with contemporaneous documentary evidence from other sources, including police occurrence reports, a news article, Person A's statement and the Member's own admissions. The Panel found the screenshot evidence reliable and gave considerable weight to this evidence.

(ii) Videos

36The Panel found the video evidence to be reliable. The 25 videos submitted into evidence during Mr. Woloszczuk's testimony were consistent with the thumbnail list of YouTube videos posted under the Member's name, as captured in screenshots taken by Mr. Woloszczuk on October 19, 2017. By cross-referencing the video titles and lengths with the thumbnails and timestamps in the screenshots, the Panel confirmed that the videos were authored and posted by the Member, and that they were publicly accessible for viewing on YouTube on October 19, 2017, when Mr. Woloszczuk accessed them. The Panel found the videos to be generally consistent in nature with the documentary evidence because they contained hidden-camera style recordings of members of the public. However, 22 of the videos were comprised of brief, shaky or blurry footage that did not convey an intelligible message about anything or anyone depicted. The Panel therefore did not attribute significant weight to these videos.

37The Panel did, however, give considerable weight to the evidence contained in three videos: a nine-minute video titled "mafia/communist insurgency"; a nine second video titled "high up Chinese organized crime husband" and a twenty second video titled "Harassers at London Remark Store." These three videos contained sufficient content and descriptions for the Panel to determine their purpose and meaning. The content and message of these videos was consistent with other contemporaneous documentary evidence of the Member's social media activities, as described in police occurrence reports, Person A's statement, a news article, and in the Member's own admissions.

(iii) Statement of Person A

38Person A's written statement and the screenshot evidence she submitted were consistent with the contemporaneous evidence in police occurrence reports, a news article and the Member's own admissions. The Panel therefore found Person A's evidence reliable and gave weight to her submissions. The Panel also found Person A's request to remain anonymous reasonable given the intrusive and threatening nature of the conduct under examination.

(iv) The Member's Submissions to the College Investigator

39In his written response to the complaint (Exhibit 21), the Member admitted to taking pictures of members of the public without their consent and to authoring posts about members of the public on social media. The Panel found that some of the Member's admissions were reliable and honest. The Member would have been aware of the significance and importance of his admissions, which were against his interests. As such, the Panel accepted the Member's evidence related to the time period in or after 2017, specified in the Notice of Hearing. The Panel placed significant weight on the Member's admissions regarding the social media posts in evidence at Exhibit 6. The Panel found these admissions to be consistent with other documentary evidence, including contemporaneous public complaints investigated by the police, complaints reported to the media, as well as the complaint brought to the College by Person A.

40The Panel notes that the bulk of the Member's 45-page submission to the Investigator did not relate to the allegations. As such, the Panel did not place any weight on that portion of the submissions. For example, some admissions spoke to conduct that allegedly occurred before 2017. This predated the allegations as set out in the Notice of Hearing. Further, if the Panel could not verify a date related to the Member's admissions, the Panel did not consider those admissions when making its findings.

41Overall, the Member's admissions were both internally consistent and consistent with the other sources of evidence in this case.

(3) Factual Findings

(a) The College has proven particular 2(a) of Exhibit 1

42In his written response to the complaint (Exhibit 21), the Member admitted that in or after 2017, he took pictures of members of the public without their knowledge or consent. Prior to making this admission, the Member had an opportunity to review the screenshots of Facebook posts and YouTube videos that Ms. Guerra and Mr. Woloszczuk located and accessed on the Member's Facebook page and on the Member's YouTube channel page as well as the complaint against him (Exhibit 6).⁶ Though the Member did not directly address the particulars of the allegations in this hearing, in his reply to the College the Member transcribed or discussed examples of other similarly derogatory and offensive posts that he said he had uploaded to social media. Further, the Member insisted that he was acting to expose criminals on social media to get them to leave London. The Member wrote:

"It has been suggested that I am arbitrarily putting innocent individuals' images on social media and slanderously labelling them various criminals. However, my acts are far from arbitrary. Police, amongst others, allege to me who various alleged criminals are in London and I put them on social media in an effort to get these individuals to leave London and to make them aware that police are aware of the criminal acts they have committed. This is all in the hopes of cleaning London up from some of the worst of its criminal element. Furthermore, I have total support of London police in my endeavours and they are also passing information along to me about mass acts of violence in society which can be prevented." (Exhibit 21 at page 240)

43The Member held himself to be acting in concert with the police. He also submitted that he had the support of police for his activities "outing" criminal suspects on social media (Exhibit 21 at page 256). Based on the documentary evidence included in police occurrence reports, it is highly implausible that the London police enlisted the Member's assistance to investigate crime in any capacity, disclosed the identities of alleged criminals to the Member, or encouraged him to publish social media posts with accusations or offensive comments about members of the public.

44On the contrary, the police investigated the Member for these activities. On September 19, 2017, the police received several complaints from members of the public complaining about the Member's surreptitious photographing and posting (see London Police Service, General Occurrence Information at Exhibits 12 and 13). During the London police investigation, it was also verified that the Member's Facebook and YouTube accounts were secure, confirming that the Member authored the posts and captions emanating from the social media accounts bearing his name (Exhibit 11 at page 147). Following public complaints to Facebook and inquiries from the media, Facebook took down the Member's account, blocking his posts from further circulation (Exhibit 9).

(b) The College has proven particular 2(b) of Exhibit 1

45The Panel finds that the College has proven, on a balance of probabilities, that the Member posted pictures and videos of members of the public without their knowledge or consent with offensive comments on social media. The Panel found Person A's evidence credible for the reasons set out above. In Person A's statement to the College's investigator, Person A described that in September 2017, she was alerted to a Facebook post which contained a surreptitiously taken photo of herself and her child while shopping in a grocery store in London, Ontario. She submitted a screenshot of the photo, which was posted to the Member's Facebook page without her knowledge or consent and was captioned with the (false) statement that she was being "threatened" (Exhibit 24 at Tab A). The threat referred to a previous post where the Member wrote that "my [XXX] brain was being altered by Chinese communists." Person A also submitted screenshots of the contents of the Member's Facebook profile page on September 20, 2017, which included pictures of other members of the public (Exhibit 24, at Tab B). Additionally, Person A submitted a screenshot of a post captured from the Member's Facebook page which contained a photo of two individuals whom she recognized as members of the London community. The photo was captioned with the offensive comment: "Another psychopath suspected of child murder at the Victoria hospital. He has very intense, glaring eyes" (Exhibit 24 at Tab E).

(c) The College has proven particular 2(c)(i) and (ii) of Exhibit 1

46With respect to particular 2(c)(i), the College has proven, on a balance of probabilities, that in or after 2017, the Member posted negative or offensive comments and/or statements on social media about members of the public without their knowledge or consent, including suggesting that they were predators, pedophiles, pimps, prostitutes, rapists, sadists, drug users or dealers, human traffickers, murderers and/or affiliated with gangs. The Panel received documentary and video evidence to prove this allegation and gave considerable weight to this evidence for the reasons set out above. The documentary evidence in the form of screenshots of the Member's public Facebook page located and accessed by Ms. Guerra on September 20, 2017, shows several examples of photos captioned with comments about members of the public posted between June and September 2017:

• A terrible alleged pedophile…He's a sadist too…and allegedly aroused by very young children…" (Exhibit 6 at page 112)
• "Bizarre…women know this guy murdered a female. A woman on the bus was dressed like his victim and the guy became severely morose and depressed." (Exhibit 6 at page 114)
• "Another guy, likely a drug addict, trying to force his girlfriend into prostitution" (Exhibit 6 at page 113)
• "This guy is allegedly molesting his own baby" (Exhibit 6, at page 114)

47The College also brought video evidence and screenshots of YouTube video thumbnails located and accessed by Mr. Woloszczuk on October 19, 2017. The Member posted the following offensive captions under videos taken of members of the public that were roughly ten seconds long and posted to the Member's YouTube channel on September 19, 2017:

• "Wife beater goes out on the town with beaten wife" (Exhibit 7 at page 119)
• "Harassers at London Remark Store" (Exhibit 7 at page 119 and Exhibit 10 at page 133)

48With respect to particular 2(c)(ii), the College has proven, on a balance of probabilities, that in or after 2017, the Member posted negative or offensive comments and/or statements on social media that alleged that Black, Caribbean, Chinese and gay people were engaging in harassing and/or criminal activity. The Panel did not receive evidence of such postings having been made regarding Jewish people.

49The Panel accepted the documentary evidence advanced by the College in support of this allegation and gave it considerable weight for the reasons set out above. The documentary evidence located and accessed by Ms. Guerra and by Mr. Woloszczuk shows that the Member wrote these statements on Facebook between August and September 2017:

• "This guy is allegedly one of the Caribbean gang leaders harassing the residents of Byron" (Exhibit 6 at page112)
• "This black guy has basically moved into the Byron library basement. He behaves quite provocatively walking around in big ghetto jumbo jeans, hanging out in the men's bathroom nearby and watching loud vulgar rap artist interviews and child pornography…" (Exhibit 6, at page 114)
• "Closet Gay Mafia OP GUY WREAKING HAVOC IN THE LIVES HE TOUCHES AT SHERIDAN COLLEGE IN OAKVILLE…He allegedly is a gay prostitute, pedophile and does gay porn…" [emphasis original] (Exhibit 6 at page 115)
• "An alleged Caribbean pet molesting his own children" (Exhibit 6 at page 115)

50The documentary evidence located and accessed by Person A in September 2017 shows that on August 15, 2017, the Member posted the following to Facebook:

• "black-father organized crime operative allegedly abusing his wife and kids" (Exhibit 24 at page 304)

51Additionally, a video posted by the Member to YouTube in June 2017 (located and accessed by Mr. Woloszczuk on October 19, 2017) attributed criminal activity to persons of Chinese ethnicity in the title:

• "High up Chinese organized crime husband" (Exhibit 10 at page 132)

(d) The College has proven particular 2(d) of Exhibit 1

52The College has proven, on a balance of probabilities, that in or after 2017, the Member wrote and/or posted disparaging statements about individuals and/or groups, including statements which attributed negative characteristics to individuals he photographed or videorecorded in public based on their race or ethnicity. The Panel accepted the documentary evidence advanced by the College in support of this allegation and gave it considerable weight for the reasons set out above. The documentary evidence on the Member's Facebook page, located and accessed by Ms. Guerra on September 20, 2017, contains several examples of the Member's statements from Facebook:

• "This nurse was behaving provocatively in the Byron supermarket today…very ornery. I think wearing her nursing outfit she is implying that whites under her care are going to be mistreated…." (Exhibit 6, at page 114)
• "BLACK COMMUNITY HARASSING BYRON RESIDENTS. It is alleged that the black community is harassing the residents of Byron a placid suburb of London, On. Byron certainly has more than its fair share of alleged black criminals including noxious pedophiles and thieves…" (Exhibit 6, at page 114)

53The documentary evidence located and accessed by Person A in September 2017 shows that on August 15, 2017, the Member posted the following to Facebook:

• "the two Chinese guys are alleged organized crime operatives threatening the jobs of individuals…" (Exhibit 24, at page 304)

54The Member's YouTube page lists a video posted by the Member in June 2017 (and screenshot by Mr. Woloszczuk on October 19, 2017), that ties people of Chinese origin to organized crime:

• "Pinnacle of Chinese power in southern Ontario" (Exhibit 10 at page 133).

(e) The College has proven particular 3 of Exhibit 1

55The College has proven, on a balance of probabilities, that the Member posted a video on YouTube made on or about August 7, 2011, entitled "mafia/communist insurgency". The College called the video into evidence (Exhibit 10A). The video is eight minutes and 53 seconds long. In the first minute, the video alerts viewers that the Member "stumbled across a high level summit meeting between alleged communists and organized crime overlords…at the Chateau Frontenac hotel in Quebec City." The Member purports that the scenes captured "give creedence [sic] to the notion that the mafia and communist countries are in league with each other in order to subvert and plunder the Western Democracies." Set to upbeat instrumental rock music, the next eight minutes contain shaky and at times blurry hidden-camera footage of members of the public in the hotel lobby, leaving the hotel, or loading luggage into vehicles. The video pans back and forth between people standing in or outside the hotel, people getting into cars and the license plates of parked cars. The voice of the Member comes in over the music to narrate that the individuals he is filming have connections to organized crime and the Member can be heard reciting vehicle license plate numbers that the Member also claims belong to criminals.

(4) Legal Conclusions

56The Panel finds that the Member has breached subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97, for the following reasons.

(a) The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)

57The Panel finds that the Member failed to comply with the Act, the regulations or the by-laws contrary to subsection 1(14) of Ontario Regulation 437/97, by contravening section 32⁷ of the College's by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. The Divisional Court in Novick v. Ontario College of Teachers, 2016 ONSC 508 ("Novick")determined that expert evidence of the standards of the profession is not required where misconduct is "so notorious or generally accepted as not to be the subject of debate among reasonable persons" (Novick at para 71). In its decision, the Court cited physical or sexual abuse as examples of misconduct that is so notorious that expert evidence is not required to prove that it breaches the standards. However, the Panel finds that a member's misconduct does not have to rise to the level of violent abuse to be considered notorious. The Panel finds that a reasonable person would consider the acts of photographing unsuspecting individuals in the community and then publicly accusing them of serious criminal acts such as murder, pedophilia and human trafficking, and/or directing racial slurs toward members of the public or making other disparaging comments about their ethnicity or sexual orientation as conduct that is clearly and obviously at odds with the expected behaviour of a teacher. Therefore, the Panel finds that expert evidence is not required to prove that the standards of the profession, in this case, the Ethical Standards and the Standards of Practice for the Teaching Profession, were breached.

58In accordance with the "Leadership in Learning Communities" professional standard, members are expected to promote and participate in the creation of collaborative, safe and supportive learning communities and to maintain and uphold the principles of the ethical standards in these learning communities. A teacher does not need to be actively practicing in the profession for these standards to apply. The privilege of membership in the teaching profession carries with it the responsibility and expectation that members will uphold the standards in their community, even when they are not directly engaged with students, or at a school. A member of the teaching profession making false accusations of criminality or making degrading or derogatory remarks about members of the community on social media clearly fails to promote safety and support in the community.

59The Panel also finds that the Member's conduct was a clear breach of the ethical standards. In particular, the standard of "Respect", which imparts on members the responsibility to honour human dignity; and the standard of "Trust" which refers to fairness, openness and honesty. The Member demonstrated a clear lack of respect for community members by photographing and filming them without their consent and then making posts about them on social media. Further, he made false accusations of criminal activity, disparaging remarks about gay people and made comments that contained racist sentiment, particularly against Black, Caribbean and Chinese community members.

60The Member's dishonest online portrayals of these individuals also significantly undermined the trust of community members. By his own admission, the Member authored and published his posts with the intent to drive certain people out of the community ("I put them on social media in an effort to get these individuals to leave London" see Exhibit 21 at page 240). As confirmed in the CBC news article, the Member's Facebook page became widely viewed online before its offending contents were removed. The reposts and comments by Facebook users, which were screen captured by the College and Person A also indicate that the contents of the Member's Facebook posts were circulated in the community. When individuals discovered that the Member had made public posts about them or their families, they reported to the media that they felt mortified or threatened by having untrue accusations and/or racial slurs publicly posted with their image. Contemporaneous police occurrence reports also document that several members of the public were so alarmed by these posts that they reported them to police. Finally, Person A submitted that after the Member made a post about her and her [XXX], she felt unsafe at the time and she continues to feel unsafe to a point where she did not disclose her identity in this hearing, which underscores the extent to which the Member's actions undermined trust in the community. The Panel therefore finds that by his actions, the Member failed to uphold the professional and ethical standards of the profession.

(b) The Member 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)

61The Panel finds that the Member contravened subsection 1(15) on Ontario Regulation 437/97 by failing to comply with subsection 264(1) of the Education Act, which sets out the duties of a teacher. Section 1 of the Education Act defines "teacher" as a member of the College. Though the Member was not actively teaching at the material time, the Education Act still applies to the Member's conduct. Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to set a good example by exhibiting strong moral values. In other words, teachers must act as positive role models. As articulated in the Supreme Court of Canada's ruling in Ross v. New Brunswick School District No. 15 "a teacher's conduct is evaluated on the basis of his or her position, rather than whether the conduct occurs within or outside the classroom."⁸ As a recognizable member of the teaching profession, the Member assumes a position of influence not just in a school setting but in the wider community. His duty to be a positive role model therefore extends to off-duty conduct.

62Though the Panel heard no evidence establishing the direct impact of the Member's behaviour on students, the Panel finds that the Member nevertheless failed to act as a positive role model by disseminating photographs of members of the London community with offensive and distressing captions on Facebook and YouTube. As described by Person A and others who discovered that they were the subjects of the Member's public posts, the Member's online behaviour created an atmosphere of fear among members of his community. By circulating false accusations and intolerant views on his public Facebook page and on YouTube, the Member failed to demonstrate the virtuous conduct expected of teachers and thus failed to fulfill the duties of a teacher.

(c) The Member 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)

63The Member 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). The terms disgraceful, dishonourable and unprofessional do not have a legislated definition, but discipline committees have defined these terms disjunctively, and in decreasing order of seriousness.⁹ Conduct characterized as disgraceful is considered the most egregious. Disgraceful conduct casts serious doubt on a member's moral fitness to perform their professional duties and on their ability to be a member of the profession. Like disgraceful conduct, dishonourable conduct has an element of moral failing, but it need not be as severe. Dishonourable conduct often involves, but is not limited to, acts of dishonesty, deceit, fraud and theft. Unprofessional conduct does not require a moral element but involves acts demonstrating persistently poor professional judgment.

64The Panel finds that the Member's conduct in this case would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. Publicly espousing racist and prejudicial views and making false accusations of criminality to signal to certain members of the community that they are unwelcome is the kind of serious conduct that casts doubt on a member's moral fitness. This type of conduct has the effect of shaming the Member and, by association, the profession and is therefore properly characterized as disgraceful. The dishonest and misleading nature of the Member's online portrayals of individuals in his community shows poor moral judgment and is therefore also properly characterized as dishonourable. Finally, the Member's actions demonstrated a persistent lack of professional judgment.

65The Member knew or ought to have known about his obligations regarding the responsible use of electronic communication and social media by members, based on the professional and ethical standards as well as professional advisory statements issued by the College to all members regarding Use of Electronic Communication and Social Media. Given the unique position of trust and authority occupied by teachers, any intentional use of social media to "harass" members of the community, to make "inappropriate online comments that lead to civil actions such as defamation", or to "incite hatred against an identifiable group" constitutes highly inappropriate and unprofessional conduct that sets a bad example for all members of the educational community. The advisory also warns members that in the case of acts found to be defamatory, their online activities may also result in criminal charges and/or civil action.¹⁰ The Member's online presence therefore also demonstrates extremely poor professionalism.

(d) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

66Similarly, the Member's conduct as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Though the Member was not engaged in teaching at the time of his conduct and his actions were not related to classroom activities, members of the profession are expected to refrain from unbecoming conduct when they are off duty. Case law further explains that "in order to rise to the level of professional misconduct, the private conduct in question must engage either the broader public interest or the reputation of the profession."¹¹ In this case, the Member's conduct engaged both.

67The Member's own evidence demonstrates that he intentionally targeted community members with captions containing racial slurs and disturbing and offensive accusations. Members of the public felt unsafe in the community and complained to the police, to Facebook, to the media and to the College about the Member's behaviour. Many Facebook user comments responding to the Member's posts were preserved in the screenshot evidence (Exhibits 6, 9, 13, 14, 15 and 24). Among other things, Facebook users referred to the Member's posts as "disgusting", "obviously fake", "racist" and "homophobic" as well as expressed concerns about the personal safety of individuals targeted by the Member's posts. One Facebook user alerted readers on September 20, 2017, that the Member is "taking pictures of people/kids unsuspectingly and posting them to Facebook with a disgusting caption" (Exhibit 4 at Tab D).

68The Member's actions also negatively impacted the reputation of the teaching profession. The Member affiliated himself with the teaching profession online and was identified as a teacher on social media by Facebook users. As a recognizable member of the profession, the Member's reprehensible conduct reflects poorly on him and on the profession. The trust that parents, students and the public place in teachers is undermined when members engage in threatening behaviour, disseminate intolerant views on social media, and make false, public accusations about members of their community.

I. PENALTY

69The Tribunals' Office will schedule a subsequent date on which the Panel will hear the parties' submissions with respect to penalty.

Footnotes

1. 1On January 20, 2022, by-law amendments led to a renumbering of the College's by-laws. Section 9.09 was the relevant provision at the time of the hearing, but the equivalent provision is now at section 8.09.
2. 2On January 20, 2022, by-law amendments led to a renumbering of the College's by-laws. Section 9.09 was the relevant provision at the time of the hearing, but the equivalent provision is now at section 8.09.
3. 3Allegation withdrawn at College Counsel's request.
4. 4Prior to providing his response to the complaint, the Member received the contents of Exhibit 6 and knew of the complaint against him. The allegations in the complaint corresponded in substance to the allegations in the Notice of Hearing (see Exhibit 16 at pages 176 to 177). After this matter was referred to the Discipline Committee, the College attempted to serve additional disclosure materials on the Member on January 25, 2019 (Exhibit 2, Tab B at Exhibit B). The second disclosure included information regarding the College investigator's discussions with police and police occurrence reports (Exhibit 2 at Exhibits 11,12,13 and 15) and Person A's signed statement (Exhibit 2 at Exhibit 24).
5. 5The public interest or "good Samaritan" defence for defamatory statements was canvassed in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, where the Supreme Court of Canada determined that the defence could only be invoked if the publisher of defamatory statements met certain minimum conditions of "responsible publication." For the Court's discussion of the minimum requirements of "responsible publication", see para 126.
6. 6The College's disclosure to the Member regarding the College's complaint included the contents of Exhibit 6. Prior to providing his response to the complaint, the Member's response did not contain information regarding discussions with police and police occurrence reports (Exhibit 2 at Exhibits 11, 12, 13 and 15). The Member also did not have Person A's signed statement in that disclosure (Exhibit 2 at Exhibit 24). After this matter was referred to the Discipline Committee, the College served this material on the Member through additional disclosure on January 25, 2019 (Exhibit 2, at Exhibit B).
7. 7As of January 22, 2022, section 32 of the By-laws has been renumbered to section 26.
8. 8Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825 at page 7.
9. 9For example, see College of Nurses of Ontario v. Rasinaho, 2014 CanLII 90721 (ON CNO).
10. 10See Professional Advisory Use of Electronic Communication and Social Media, approved by the Council of the Ontario College of Teachers on February 23, 2011.
11. 11Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98 at page 19.