Ontario College of Teachers v. McNicoll, 2022 ONOCT 30

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v McNicoll 2022 ONOCT 30 Date: 2022-03-25

DECISION, REASONS FOR DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against Bruce McNicoll, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BRUCE MCNICOLL (REGISTRATION #173119)

PANEL: Emile Ramlochan, Chair Pascale Evans-Paulen, OCT Rebecca Zaretsky

HEARD: March 22, 2022

Linette King, for the Ontario College of Teachers Patricia D’Heureux, for Bruce McNicoll 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 March 22, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Bruce McNicoll (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated February 3, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Bruce McNicoll is guilty of professional misconduct as defined in the Act in that:

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

(b) he released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to Ontario Regulation 437/97, subsection 1(6);

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

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);²

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

(f) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(g) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);³

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Bruce McNicoll is an Ontario Certified Teacher – Inactive/Non-Practising. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. At all material times during the 2017-2018 academic year, Student 1, Student 2, and Student 3 were grade [XXX] female students in one of the Member’s classes.

4. At all material times, Parent A was the parent of Student 4, a grade [XXX] female student in the Member’s class.

Student 1 and Student 2

5. Between December 2017 and May 2018, the Member:

(a) spoke to Student 1 when she visited his classroom after school and commented to her that he had seen her sister without a Hijab, and asked Student 1 if she would continue to wear a Hijab;

(b) gave Student 1 a gift card for Pizza Pizza and told her that she should not tell anyone about the gift card.

6. On or about March 16, 2018, the Member exchanged a personal email with Student 1 in which he replied to Student 1’s concern about her older sister by telling her, “I am frightened she may be put into a situation that she can’t get out of and suffers from – drugs, alcohol, sex, even prostitution”.

7. On a few occasions between December 2017 and May 2018, the Member took Student 1 and Student 3 and others off school property for runs in the surrounding neighbourhood. The Member was engaged in training students for various [XXX] events in which they were participating and additionally taught physical education, which involved some running components. On one of these occasions, he took Student 1 and Student 3 out of class for a run. He understood the general school excursion permission form that he believed the students’ parents had signed covered these runs. He did not advise the students’ parents, teachers, or the School office of the runs before removing the students from class and/or taking them off School property.

8. On or about May 31, 2018, the Member caught Student 1 and Student 2 skipping his gym class. When he confronted the students, Student 1 informed him that she could not participate in gym class because she was fasting for Ramadan. Student 2 immediately told the Member that she could not participate either because she too was fasting. The Member, who knew that Student 2 was not Muslim, questioned her declaration that she was fasting, which upset Student 2. The Member arranged for the two students to be supervised by their homeroom teacher in their classroom during this period and when they indicated they preferred to go to the Vice Principal’s office instead, he escorted the two students to the Vice Principal’s office and referred to them as “lazy”.

9. On or about June 1, 2018, the Member discovered that Student 1 had raised concerns about him with the Vice Principal. He confronted Student 1 in the School hallway and questioned her about this, and Student 1 felt cornered and uncomfortable. The Member’s conduct had a negative impact on Student 1. Student 1 and Student 2 were removed from the Member’s class due to the ensuing Board investigation.

Inappropriate Disclosure of Information

10. On June 4, 2018, the Principal advised the Member that the Board was conducting an investigation, and directed the Member to “refrain from speaking to any students, their family members or other staff members about anything to do with the concerns or the investigative process”. Attached hereto and marked as Exhibit “B” is a copy of the Principal’s email to the Member dated June 4, 2018, detailing the conversation.

11. On or about June 17, 2018, the Member disclosed personal information about Student 1 in an email to Parent A.

12. On June 22, 2018, the Principal emailed the Member to advise that following a meeting with Student 1 and Student 4, an issue between them had been resolved. On June 23, 2018, the Member responded to the Principal, and forwarded his response to Student 3 and Student 4, which was read by Parent A. His response included confidential information about the investigation and Student 1. Attached hereto and marked as Exhibit “C” are copies of the Member’s emails to the Principal, to Student 3 and Student 4, and Parent A’s response to the Member.

13. On or about June 25, 2018, the Member sent an email to Student 3 regarding the Board’s investigation, in which he disclosed confidential information to Student 3. Attached hereto and marked as Exhibit “D” is a copy of the Member’s email exchange with Student 3 on that date.

14. In June 2018, the Member used inappropriate, disrespectful, and pejorative language to describe Student 1 in communications with the Board.

Board Discipline

15. By letter dated June 28, 2018, the Board suspended the Member without pay for a period of five days, transferred the Member from his position at the School, and required the Member to participate in a boundaries training program as a condition to returning to work in the 2018-2019 academic year.

16. The Member completed a course on Professional Boundaries on November 19, 2018. Attached hereto and marked as Exhibit “E” is a copy of the Member’s certificate of completion of the course.

17. The Member taught for his Board for approximately 28 years before his retirement on December 31, 2018, with no prior discipline.

PLEA OF NO CONTEST

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

19. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(6), 1(7), 1(14), 1(15), 1(18 - dishonourable and unprofessional only), and 1(19).

20. By this document the Member states that:

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

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

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

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

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

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

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

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

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

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.2) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. In relation to subsection 1(7.2), College Counsel stated that the evidence would better support a finding of professional misconduct under the other heads of misconduct. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on March 22, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(6), 1(7), 1(14), 1(15), 1(18) [dishonourable and unprofessional only] and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 17 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that on multiple occasions the Member engaged in inappropriate conduct, which included the disclosure of confidential student information.

9The Member released or disclosed information about a student to a person other than the student or, if the student is a minor, the student’s parent or guardian, contrary to subsection 1(6) of Ontario Regulation 437/97. On June 4, 2018, the Member was directed by his principal to refrain from speaking to any students, their family members, or other staff members about the investigation relating to the Member’s conduct. The Member, however, contravened this directive on several occasions in June 2018. On or about June 17, 2018, the Member disclosed personal information about Student 1, a Grade [XXX] student, in an email to Parent A, who was not Student 1’s parent or guardian. Furthermore, on June 23, 2018, the Member forwarded an email he had written, which included confidential information about Student 1, to other students. That email was also read by one of the other student’s parent, Parent A. Similarly, the Member disclosed confidential information about Student 1 in an email to Student 3 that the Member sent on June 25, 2018. The Panel finds that this disclosure of Student 1’s personal information was a breach of subsection 1(6).

10The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. On multiple occasions the Member made inappropriate comments to students, which included: telling Student 1 that the Member had seen her sister without a Hijab and asking Student 1 if she would continue to wear one; referring to Student 1 and Student 2, who could not participate in gym class because they were fasting, as “lazy”; and questioning Student 2’s declaration that she was fasting. It was inappropriate for the Member to question Student 1 about her decision to wear religious attire. This is a personal choice that a student does not need to discuss with or justify to their teacher. It was similarly inappropriate for the Member to call Student 1 and Student 2 lazy after they informed him that they could not participate in gym class because they were fasting. The Member’s characterization of his students as lazy was dismissive and insensitive. Overall, the Member’s various inappropriate interactions with students as described above amount to verbal abuse because they were insensitive to students’ religious practices and placed students in an uncomfortable position.

11The Panel finds that the Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening the provisions of the College By-Laws, which set out the professional and ethical standards for the teaching profession.⁴ In particular, the Member breached the standards of practice of “Commitment to Students and Student Learning” and “Leadership in Learning Communities” and the ethical standards of “Trust” and “Respect”. Members are required to demonstrate care and commitment to students, treat students equitably and with respect, and be sensitive to factors that influence student learning. Members are also required to promote and participate in the creation of collaborative, safe and supportive learning communities. In addition to making offensive and insensitive comments as described above, which upset Student 2, the Member also confronted and questioned Student 1, who had raised concerns about him to the vice-principal. This made Student 1 feel cornered, uncomfortable and had a negative impact on her. The Panel finds that by doing so, the Member demonstrated a lack of care and commitment to his students’ well-being and was disrespectful towards them. Confronting and questioning a student in a way that makes them feel cornered also creates an intimidating atmosphere that is incompatible with the expectation that teachers will promote a safe and supportive learning environment.

12Additionally, members’ professional relationships with students, colleagues and parents are based on trust. The Member inappropriately disclosed Student 1’s personal information as well as confidential information about the Board investigation, in complete disregard of the principal’s directions. Moreover, the Member took students off School property without ensuring that he had the appropriate permissions and without advising the students’ parents, teachers or the School office. The Panel finds that by engaging in such conduct, the Member broke the trust which his students, colleagues and parents had placed in him. As such, the Member’s conduct fell below the professional and ethical standards of the profession.

13The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) provides that it is the duty of a teacher to “inculcate by precept and example respect for religion and […] the highest regard for truth, justice, loyalty […] and all other virtues.” Simply put, teachers must exemplify these virtues and act as positive role models. The Member failed to do so by his inappropriate conduct as described above, which included making insensitive comments to Student 1 about her religious attire (Hijab) and questioning Student 2 about her fasting because she was not Muslim. Furthermore, the Member gave Student 1 a gift card and told her that she should not tell anyone about it. By doing so, the Member taught Student 1 to be secretive and dishonest instead of being open and truthful. Section 264(1)(d) requires teachers to assist in developing co-operation and co-ordination of effort among members of the staff of the school. The Member’s conduct was contrary to these principles. By inappropriately disclosing confidential information about Student 1 and the investigation, in complete disregard of the principal’s directions, and by taking students off School property without informing his colleagues or the School office, the Member failed to collaborate with staff of the school. As such, the Member failed to fulfil his duties as a teacher.

14The Panel finds that the Member’s conduct was dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to maintain appropriate professional boundaries with students and refrain from disclosing students’ personal and confidential information. The Member did the opposite by his numerous instances of misconduct described above and by also referencing inappropriate subjects of conversation such as drugs, alcohol, sex and prostitution in a personal email to Student 1. Such conduct demonstrates significant moral and professional failings by the Member. The Panel accepts the parties’ joint submission that the subsection 1(18) finding should be limited to dishonourable and unprofessional conduct only. Although the Member’s conduct has an element of moral failing, the Panel accepts the parties’ joint position that the conduct was not so serious that it amounts to “disgraceful” conduct, which is commonly understood to be the most serious label of the three described at subsection 1(18).

15The Panel finds that the Member’s inappropriate conduct, as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Conduct that includes making offensive comments to students and disclosing students’ personal information to others undermines the reputation of the teaching profession and breaches the trust that the public places in the profession.

F. PENALTY Decision

16The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 22, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st;

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

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

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

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

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

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

G. REASONS FOR PENALTY DECISION

17The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.⁵ The Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Wilson, 2019 ONOCT 41, Ontario College of Teachers v. Gauthier, 2021 ONOCT 60, and Ontario College of Teachers v. Kaiser, 2021 ONOCT 18.

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the multiple instances of the Member’s misconduct which were directed mainly at Student 1 and the fact that the Member’s conduct had a negative impact on Student 1. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing, and he has not previously been the subject of College or Board discipline throughout his lengthy teaching career. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

19The Panel finds that the Member’s inappropriate conduct warrants a reprimand. Members are expected to provide a safe and supportive environment for students, maintain appropriate professional boundaries with students, and refrain from disclosing students’ personal information. The Member failed to do so by confronting and questioning Student 1, making inappropriate and offensive comments to students, and disclosing Student 1’s personal information, among other things. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

20Given the nature and severity of the Member’s misconduct, the Panel finds that a two-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on April 6, 2022, which is 15 days after the Panel’s Decision and Order.

21The Panel recognizes that the Member completed a professional boundaries course on November 19, 2018. Given the multiple instances of his boundary violations with students and in accordance with the parties’ Joint Submission on Penalty, the Panel finds that further coursework regarding boundary violations will assist in the rehabilitation of the Member, prior to any return to a teaching position. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students. The coursework should provide the Member with a clear understanding of how to maintain appropriate professional boundaries with students.

22The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3Allegation narrowed to dishonourable and unprofessional acts only.
4. 4The Panel notes that the Notice of Hearing alleges a breach of section 32 of the College By-Laws. On January 20, 2022, the By-Laws were amended, and the numbering of certain provisions has changed. Section 26 of the By-Laws now sets out the standards of the profession; however, the substance of this provision remains identical to section 32 of the previous version of the By-Laws.
5. 5See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.