DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Arsenault 2022 ONOCT 39

Date: 2022-04-12

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

Joseph Wayne Arsenault, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOSEPH WAYNE ARSENAULT (REGISTRATION #180816)

PANEL: Stéphane Vallée, OCT, Chair Rachelle Coleman Élaine Legault

HEARD: May 10, 2021

Danielle Miller and Noam Uri, for the Ontario College of Teachers

No one appearing for Joseph Wayne Arsenault

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 May 10, 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”).

2Joseph Wayne Arsenault (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Noam Uri sworn on April 26, 2021 (Exhibit 2), to show that the College had made numerous attempts to inform the Member of the allegations against him, the time and date of the hearing, as well as possible outcomes (including costs) that may be ordered by the Panel if a finding of professional misconduct is made. In her affidavit, Ms. Uri outlined the communications sent to the Member, as required by section 9.09¹ of the College by-laws and provided proof of attempted service of all required documents. College Counsel advised that personal service could not be effected and the materials sent by registered mail and courier were returned undeliverable. All communications to the Member were sent to the last known address and contact information on file with the College, but the Member moved and the telephone numbers that the College had on file for the Member were either out of service or the wrong number. Further, the Member did not respond to College Counsel’s emails requesting that he provide an updated address, advising him of hearing dates, and requesting his participation in the discipline process. Ms. Uri also outlined the unsuccessful attempts taken by the College Investigator to contact the Member in the course of investigating the allegations in this matter. College Counsel noted that section 31² of the College by-laws requires members to provide the Registrar with contact information and to notify the College within 30 days of any changes to their contact information.

4Based on this affidavit, the Panel was satisfied that the College had met its service obligations with respect to the Notice of Hearing and all disclosure documents. The Panel is satisfied that the Member was deemed to have been served³ and informed of the time and date of the hearing, as well as the penalty and costs that could be sought by the College. The Panel therefore heard this matter in the absence of the Member.

5At the conclusion of the hearing on May 10, 2021, the Panel found that the College had proven on a balance of probabilities that the Member engaged in professional misconduct contrary to subsections 1(7), 1(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel also found that the Member engaged in sexual misconduct as defined in section 1 of the Ontario College of Teachers Act, 1996 (the “Act”). The Panel did not find that the Member breached subsection 1(5) of Ontario Regulation 437/97, as that allegation was withdrawn.

6The Panel proceeded to hear submissions on penalty and costs and reserved its decision. These are the Panel’s reasons for its findings as well as the Panel’s decision and reasons on penalty and costs.

A. PUBLICATION ban

7The 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. Note that this ban applies to both student witnesses in this case.

B. THE ALLEGATIONS

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

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

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);⁴

(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 engaged in sexual misconduct as defined in section 1 of the Act;

(e) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(f) he failed to comply with the Act or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);⁵

(g) 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);

(h) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Joseph Wayne Arsenault is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the [XXX] as a teacher at [XXX] School (the "School") in [XXX], Ontario.

3. At all material times, Student 1 and Student 2 were female students in the Member's Grade [XXX] class.

4. During the 2017-2018 academic year, the Member:

(a) used the School's internet account and computer to access dating sites during school time.

5. On or about January 22, 2018 and/or February 7, 2018, the Member fell asleep in his Grade [XXX] class.

6. On or about April 6, 2018, the Member:

(a) showed an inappropriate movie to his Grade [XXX] class entitled, "A Little Chaos", which contained sexually explicit material;

(b) said to Student 1 and/or Student 2 who expressed concerns about the content of the video, "You should be used to it since you are girls" and/or "You should be fine with it since you are girls".

C. THE MEMBER’S PLEA

9As 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. THE EVIDENCE

10The College presented oral 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. The following is a summary of the College’s evidence.

(1) Oral Evidence

11The College called three witnesses: [XXX] (“Student 1”) and [XXX] (“Student 2”) who were female students in the Member’s Grade [XXX] class during the 2017-2018 school year; and Ms. Mila Morris, who was the principal of the School and conducted an investigation into the Member’s conduct in the 2017-2018 school year.

12For reasons that will be set out in greater detail below, as needed, the Panel found that the three witnesses’ evidence was credible and consistent with respect to all material facts. Although there were some minor inconsistencies between their accounts the Panel does not find that these types of discrepancies are material or diminished the witnesses’ credibility about the key facts at issue.

13As the Member chose not to participate in the hearing, the College witnesses were not cross-examined, and no evidence was presented in the Member’s defence.

(a) Student 1’s Testimony

14At the time of the hearing, Student 1 was [XXX] years old and did not attend school. The last grade she finished was Grade [XXX]. During the 2017-2018 academic year, Student 1 was a [XXX]-year-old student in the Member’s Grade [XXX] class at the School.

15The Member stopped being her teacher in April 2018 after an incident involving a movie that the Member showed to his Grade [XXX] class entitled, “A Little Chaos”. Student 1 had never seen the movie before and testified that it was not related to anything that the Member was teaching her class that year. During her testimony, Student 1 was presented with a copy of an IMDb printout of the movie “A Little Chaos” (Exhibit 4). Student 1 testified that she recognized the actors on the first page of the printout as being from the movie the Member showed in class. Student 1 was also presented with a copy from a Common Sense Media webpage for “A Little Chaos” (Exhibit 5) and recognized the pictures in that printout as being from the movie the Member showed in class.

16Student 1 was sitting in a corner at a desk with three other students (including Student 2) when the Member played the movie. Approximately 30 minutes into the movie, Student 1 saw a scene with a male and a female on a desk. The characters were dressed but they were moaning, and Student 1 understood them to be having sex.

17Student 1 said that she felt disgusted by this content, so she got up to pause the movie. She told the Member she was stopping the movie because of the sex scene. The Member then played it again and told her “You should be used to it, you’re a girl” or words to that effect. Student 1 said she did not understand what the Member meant by his comment but felt grossed out by the statement.

18Student 1 then left to go to the office with Student 2. The Member yelled in the hallway for other teachers to try to stop them. Despite these other teachers’ efforts, Student 1 and Student 2 went to the office and told the vice-principal and principal, Ms. Mila Morris what happened.

19Student 1 testified that Ms. Morris then spoke with the Member and sent him home. Student 1 was present when this happened. She testified that the Member tried to explain what happened, and that Ms. Morris had to yell for the Member to leave, as the Member was slow to do so. The Member did not return as Student 1’s teacher after this incident.

(b) Student 2’s Testimony

20At the time of the hearing, Student 2 was [XXX] years old and did not attend school. The last grade she finished was Grade [XXX]. During the 2017-2018 academic year, Student 2 was a [XXX]-year-old student in the Member’s Grade [XXX] class at the School. Student 2 testified that the Member was her teacher until April of that academic year.

21Student 2 testified that she was sitting by the classroom door with three friends (including Student 1) when the Member put on the movie, “A Little Chaos” in April 2018. Student 2 testified that the movie was not related to anything the Member was teaching them. While the movie was playing, the Member sat at the back of the class and played chess with two other students.

22Student 2 testified that Student 1 paused the movie when a particular scene came on. Student 2 testified that she could not see the screen because of where she was sitting but heard some noises, including the sound of a lady. Student 1 told Student 2 it was a sex scene. Student 2 testified that Student 1 got up and paused the movie when the scene came on and told the Member to stop or change the movie. The Member said no and said something to the effect that they should be used to it because they are girls. Student 2 did not understand what the Member meant by that comment but testified that it made her feel uncomfortable. The Member proceeded to turn the movie back on. Student 2 testified that she felt uncomfortable throughout the whole incident, and she believed that the other students she was sitting with felt the same way.

23Student 2 testified that, following this incident, she and Student 1 went to the office to tell the principal what happened. Student 2 testified that she felt nervous speaking with the principal. The principal told them to sit in the administration office and went to speak to the Member. After the principal spoke with the Member, he went back to the classroom to pick up his belongings and did not teach them the rest of the day.

24While they were waiting for the principal to return, Student 1 and Student 2 spoke with the vice-principal about other concerning incidents that happened throughout the school year. Student 2 testified that the Member had fallen asleep on two occasions in class while students were working, and that on one of these occasions, students went to get another teacher who woke up the Member. Student 2 testified that she knew the Member was sleeping because his head was on his desk and he was snoring.

25Student 2 also testified that the Member had accessed a dating website in class. During this incident, Student 2 was a few feet away from the Member, who told another student that he (the Member) was on a dating website. Student 2 testified that the Member was using a school computer to do this, and that the screen was visible to the class. Student 2 testified she felt “weirded out” during this incident.

(c) Ms. Morris’ Testimony

26Ms. Morris is an experienced educator with more than 25 years of experience, having obtained her teaching certificate in 1996, her principal’s qualification in 2006, and a Master of Education degree in 2010. She has held various roles in education, both as a teacher and an administrator throughout her career (see Exhibit 6). Ms. Morris became the principal at the School in January 2018 and was the School principal at all material times. As the principal, Ms. Morris’ responsibilities included ensuring that the School’s 89 staff members were professional, punctual, and delivered the curriculum appropriately, and that the School’s 420 students were physically, emotionally and spiritually safe. Ms. Morris testified with regards to the sleeping in class incidents, the inappropriate movie incident, and the dating website incident.

27With respect to the sleeping incidents, Ms. Morris testified that she received two reports from the Member’s teaching assistant, Ms. Kebokee, who was present both times the Member slept in class. On January 22, 2018, the Member slept in class from approximately 2:45 p.m. until 3:25 p.m., and was audibly snoring, according to Ms. Kebokee’s written report to Ms. Morris (see Exhibit 7). On January 26, 2018, Ms. Morris provided the Member with a Letter of Reprimand in which she outlined her expectations for the Member (see Exhibit 8). The Member signed the letter, acknowledging that he received it. On February 7, 2018, Ms. Morris received a second written report from Ms. Kebokee indicating that the Member again fell asleep in class (see Exhibit 9).

28With respect to the inappropriate movie incident (i.e., “A Little Chaos”), Ms. Morris testified that two female students reported this incident to her, with the vice-principal in attendance as well. The students told Ms. Morris and the vice-principal that they were shown a bad movie. Ms. Morris then spoke with the Member about this incident, but the Member did not confirm that he had shown his class an inappropriate movie. The principal investigated further by going to the Member’s class and asking one of the Member’s teaching assistants to show her the scene in question. Ms. Morris watched the scene and determined that it was an inappropriate, explicit, and passionate scene showing intimate contact between the actors. Ms. Morris further testified that the students reported that when they told the Member the movie was inappropriate, the Member said something to the effect of, “don’t be like that because you’re going to be doing stuff like that soon”. Ms. Morris acknowledged that she did not herself hear the Member make that comment to the students. Ms. Morris reported the inappropriate movie incident to the Education Director, who advised the principal to assign the Member to home pending an investigation.

29On April 8, 2018, the Member provided Ms. Morris with a letter of apology in which he indicated that he did not have the time to preview the film for inappropriate content beforehand, did not have knowledge of the inappropriate content, and apologized for his lack of discretion regarding the inappropriate scene (see Exhibit 10). Ms. Morris gave this letter to the Education Director, who asked the principal for her recommendation about how to proceed with the Member. Ms. Morris did not believe it would be appropriate for the Member to return to the classroom given the circumstances.

30With respect to the dating website incident, Ms. Morris testified that she had learned of the incident but could not recall if it occurred during or after school hours. Either way, Ms. Morris testified that teachers and administrators were expected to use the School’s internet for professional (but not personal) purposes.

31Ms. Morris confirmed that the [XXX] terminated the Member’s employment effective April 12, 2018 (see Exhibit 11).

(2) Documentary Evidence

32The College provided the Panel with documentary evidence, including a copy of the Member’s Registration Page from the College Register (Exhibit 3) which showed that the Member obtained his certificate of qualification and registration on June 30, 1992. The Member’s certificate has been suspended for non-payment of his annual membership fee since April 17, 2019.

E. SUBMISSIONS OF COLLEGE COUNSEL

33College Counsel asked that the Panel withdraw the allegation that the Member contravened subsection 1(5) of Ontario 437/97 on the basis that it would be duplicative to pursue both this and the subsection 1(14) allegation, as both deal with contraventions of the standards of the profession.

34College Counsel submitted that the evidence presented to the Panel proves each of the remaining allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel reviewed the relevant evidence with the Panel and submitted that the three College witnesses were credible. The witnesses presented their evidence in a straightforward manner without exaggeration. The testimonies of the three witnesses were consistent with each other on all material issues. College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

F. DECISION ON FINDING

(1) Onus and standard of proof

35The 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

36Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation under subsection 1(5) was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. The Panel granted this request.

37Having considered the evidence and submissions of College Counsel, the Panel rendered an oral decision on May 10, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(11), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.

G. REASONS FOR DECISION

38The Panel has carefully reviewed the evidence and submissions presented in this matter. 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. The Panel notes that, although the Member did not attend the hearing to defend himself with respect to the allegations, the College must nevertheless prove each allegation on a balance of probabilities.

(1) Factual Findings

(a) During the 2017-2018 academic year, the Member used the School’s internet account and computer to access dating sites during school time

39The Panel finds that the College has proven, on a balance of probabilities, that the Member used the School’s computer and internet account to access a dating site during school time during the 2017-2018 academic year. The Panel accepts Student 2’s testimony that on one occasion, while the Member was using a school computer in the classroom, another student asked him what he was looking at and the Member said he was on a dating website. The Panel accepts Student 2’s testimony that she was standing close enough to the Member and the other student to hear this comment. The Panel did not receive any evidence to contradict Student 2’s testimony and finds that Student 2 was a credible witness who had a clear recollection of this incident (which made her feel “weirded out”) and that she testified honestly about having observed the incident (which occurred within a few feet of her) firsthand.

(b) On or about January 22, 2018 and/or February 7, 2018, the Member fell asleep in his Grade [XXX] class

40The Panel finds that the College has proven, on a balance of probabilities, that the Member fell asleep on two occasions in his class. As noted above, Ms. Morris received oral and written reports from the Member’s teaching assistant, Ms. Kebokee, indicating that the Member fell asleep in class on two separate occasions. First, on January 22, 2018, Ms. Kebokee reported to the principal that the Member fell asleep at his desk from about 2:45 p.m. until 3:25 p.m., having been temporarily startled awake when students started laughing at him. Ms. Kebokee reported that the Member could be heard snoring (see Exhibit 7). Ms. Morris testified that she provided the Member with a written reprimand following this incident, on January 26, 2018 (see Exhibit 8). Subsequently, on February 7, 2018, Ms. Kebokee again reported to Ms. Morris that the Member was asleep at his desk in class at 8:30 a.m. The teaching assistant went to get fruit for the students, and when she returned, the Member was still asleep with his head down on his desk. At around 8:45 a.m., Ms. Kebokee reported this incident to Ms. Morris (see Exhibit 9).

41While Ms. Morris did not observe the sleeping incidents firsthand, the Panel finds that Ms. Morris’s uncontradicted hearsay evidence (including Ms. Kebokee’s written statements) was sufficiently reliable. Ms. Morris investigated the incident and discussed it with the Member on January 23, 2018. She then gave him a formal, written reprimand, after satisfying herself that the Member did, in fact, fall asleep in class on January 22, 2018 (see Exhibit 8). The hearsay evidence entered through Ms. Morris was also corroborated by Student 2’s evidence, who witnessed the Member sleeping in class. Although Student 2’s account differed slightly from Ms. Kebokee’s account with respect to some of the peripheral details (e.g., Student 2 testified that the two sleeping incidents lasted 5 and 15 minutes respectively and noted that, during one incident, the students went to get another teacher to wake the Member up), the Panel does not believe that these inconsistencies are material. Student 2’s evidence and that of Ms. Kebokee were consistent in that both observed the Member sleeping in class on two occasions, with his head on his desk, and both heard him snoring and noticed that he woke up when students laughed at him during one of the incidents.

42Based on the totality of the uncontradicted evidence with respect to these incidents, the Panel finds, on a balance of probabilities, that the Member fell asleep twice in his Grade [XXX] class – on January 22, 2018 and on February 7, 2018.

(c) On about April 6, 2018, the Member showed a movie to his Grade [XXX] class entitled “A Little Chaos” which contained sexually explicit material

43Student 1 and Student 2 were consistent in their testimonies that the Member showed the movie, “A Little Chaos” in their Grade [XXX] class. Student 1 testified that she saw and was distressed by a scene in which two characters were dressed but moaning and engaging in sexual activity. During her testimony, Student 1 identified images from the movie in webpages for “A Little Chaos” from IMDb (Exhibit 4) and Common Sense Media (Exhibit 5). Student 2 testified that she could not see the movie very well from where she was sitting in class, but she did hear a part of the movie that she described as the sounds of a lady. Moreover, Ms. Morris testified that when she went to the Member’s class and viewed the scene Student 1 and Student 2 described, she determined it was an inappropriate, explicit, and passionate scene showing intimate contact between the actors.

44The Panel has reviewed these webpages and notes that IMDb states the film’s Motion Picture Rating (MPAA), is “Rated R for some sexuality and brief nudity” (Exhibit 4) and the review for the film in Common Sense Media states in the section entitled, “WHAT PARENTS NEED TO KNOW”, that “[t]here are brief glimpses of naked breasts and butts, and love scenes show people moving and moaning, vigorously” (Exhibit 5).

45The Panel has also reviewed the Member’s apology letter regarding this incident (Exhibit 10). Although he did not note the title of the movie in his apology letter, the Member notes that the movie was shown on April 6, 2018 and that it contained “inappropriate” content.

46Taking into account all of the evidence described above, the Panel finds that the College has proven, on a balance of probabilities that, on April 6, 2018, the Member showed his Grade [XXX] class the movie entitled, “A Little Chaos”, which contained sexually explicit material.

(d) On about April 6, 2018, the Member said to Student 1 and/or Student 2 who expressed concerns about the content of “A Little Chaos”, “You should be used to it since you are girls” and/or “You should be fine with it since you are girls”.

47The Panel finds that the College has proven, on a balance of probabilities, that the Member said to Student 1 and/or Student 2 something to the effect of, “You should be used to it since you are girls” when Student 1 expressed concerns about the sexual content of the movie. Student 1 and Student 2 both observed this incident firsthand, as they were the recipients of the Member’s inappropriate remark. The students’ testimonies about this incident were consistent with one another, and the Panel finds that the students testified honestly and that their evidence was credible. Student 1 testified that when she told the Member she was turning off the movie because of the sex scene, the Member stopped her, turned the movie back on, and told her and Student 2, “you should be used to it, you’re a girl”. Student 2 also testified that the Member told Student 1 and Student 2 that they should be used to it because they are girls.

48The Panel recognizes that Ms. Morris’s testimony about this incident is slightly inconsistent with the students’ accounts. Specifically, Ms. Morris testified that the Member told the students something to the effect of, “don’t be like that because you’re going to be doing stuff like that soon”. The Panel does not believe that this minor inconsistency undermines the students’ credibility. Both Ms. Morris’s version of what was said and the students’ versions are similar in that they all testified that the Member essentially dismissed the students’ concerns and made a remark implying they should be comfortable with the sex scene in the movie. To the extent that there is a minor discrepancy with respect to the precise words used by the Member, the Panel prefers the evidence of the students who received the comment firsthand and who were consistent with each other about what was said. Ms. Morris did not observe the events directly and she could only relay second-hand information about what others told her the Member said to the students.

(2) Legal Conclusions

49The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member abused a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7); he abused a student or students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); he engaged in sexual misconduct as defined in section 1 of the Act; he failed to supervise adequately a person who was under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11); 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); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

(a) The Member abused a student or students verbally contrary to Ontario Regulation 437/97, subsection 1(7)

50The Panel finds that the Member verbally abused Student 1 and Student 2, contrary to Ontario Regulation 437/97, subsection 1(7), when he said, in response to their concerns about the sex scene in “A Little Chaos”, something to the effect of “You should be used to it since you are girls”. The Member’s comment implied that Student 1 and Student 2 should not be offended by a sex scene because, as girls, they should be used to sex. Student 1 said she felt “grossed out” and Student 2 testified that she felt “uncomfortable” when the Member made this comment. The Member’s comment to Student 1 and Student 2, who were respectively [XXX] and [XXX] years old at the time, amounts to verbal abuse because it was offensive, sexist, had sexual connotations, and was dismissive of the students’ legitimate concerns about watching a sex scene in a movie at school. Teachers must always communicate professionally, respectfully, and supportively with students. The Member did the opposite in this instance.

(b) The Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

51The Member’s conduct with respect to showing his Grade [XXX] class “A Little Chaos” and accessing a dating site in front of students in class amounted to psychological or emotional abuse, contrary to subsection 1(7.2) of Ontario Regulation 437/97. Psychological or emotional abuse refers to behaviour that can significantly interfere with a child’s cognitive, emotional, psychological, or social development and well-being. “A Little Chaos” was inappropriate for a Grade [XXX] class and negatively impacted Student 1 and Student 2. As noted above, Student 1 felt disgusted by the sex scene she saw, and Student 2 testified that she felt uncomfortable by what happened in class. Student 1 and Student 2 were upset enough by the Member’s comments that they left his class to report the incident to the principal and vice-principal. The Member jeopardized Student 1 and Student 2’s psychological and emotional well-being by placing them in an uncomfortable situation at school, by ignoring their concerns about watching a sex scene in class, and by making a suggestive and inappropriate comment to them. The Member was also dismissive of Student 1’s mature and courageous act of standing up for herself and turning off the movie. By turning the movie right back on, the Member, who held a position of authority over the student, negated her efforts to do the right thing and discouraged Student 1’s commendable behaviour.

52In addition, Student 2 testified that she felt weird when she heard the Member tell her classmate that he (the Member) was on a dating website during class time. Student 2 testified that the computer screen was visible to the class. The Panel finds that the Member’s conduct on that occasion was also psychologically and emotionally abusive, as it is not appropriate for members to access mature content relating to their personal life in the presence of students. As professionals, members must maintain appropriate boundaries with students and recognize that it can be unsettling or upsetting to students when those boundaries are crossed, as the Member did in this instance.

(c) The Member engaged in sexual misconduct as defined in section 1 of the Act

53The Panel finds that the Member engaged in sexual misconduct as defined in section 1 of the Act. “Sexual misconduct” is defined in section 1 of the Act as follows:

1(1) In this Act,

“sexual misconduct” means inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,

(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks;

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.

54The Member exposed students in his Grade [XXX] class to behaviour of a sexual nature, namely, showing [XXX]-year-old students an R-rated movie, containing sexual content. The Panel finds that a reasonable person would expect that such conduct would cause distress to students exposed to the behaviour, be detrimental to those students’ physical or mental well-being, or create a negative environment at the school. The Member’s conduct had all three effects in this instance. Student 1 testified that she was disgusted by the film, and Student 2 testified that she and her friends were made to feel uncomfortable. The Member’s conduct clearly created a negative environment at school because Student 1 and Student 2 were disturbed enough by the incident to leave their class to report it to the school administration, and the school administration determined that the Member should be assigned to home as a result of this incident, pending an investigation.

(d) The Member failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11)

55The Panel finds that the Member failed to adequately supervise persons under his professional supervision on several occasions during the 2017-2018 academic year, contrary to subsection 1(11) of Ontario Regulation 437/97. The Member fell asleep in class on two occasions during the 2017-2018 school year, during instructional time when he was supposed to be supervising and teaching his students. Evidently, a sleeping teacher is not providing adequate student supervision.

56Moreover, adequate supervision requires something more than a teacher’s mere presence in class. Members must also exercise appropriate professional judgment in their supervision of students. The Member failed to adequately supervise his students by showing them an inappropriate, R-rated movie that was unrelated to the curriculum, without having previously viewing the movie to determine if it was age appropriate. By his own admission in his apology letter (Exhibit 10), the Member acknowledged that he put the movie on without knowing its subject matter or the suitability of its content. Even after learning that the movie contained sexual content that was distressing to students, the Member refused to turn off the movie. Accordingly, the Panel finds that the Member was inattentive to the emotional well-being of his students and therefore failed to adequately supervise his class.

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

57The Panel accepts College Counsel’s submission that expert evidence is not required to prove a breach of professional or ethical standards in this case because it is self-evident that the Member breached the standards by showing his Grade [XXX] class an R-rated movie that contained sexually explicit content and nudity (see Exhibits 4 and 5). The students in his class were [XXX] years old and the movie was completely unrelated to the curriculum. The Panel also concludes, based on common sense, that it is a breach of professional standards for a member to sleep with their head down on their desk during instructional time while they are supposed to be teaching their students.

58Despite the self-evident nature of the breaches of professional and ethical standards in this case, College Counsel referred the Panel to the following specific breaches of the Ethical Standards for the Teaching Profession as set out in the College by-laws. The ethical standard of “Care” requires members to show compassion for and commitment to their students’ well-being, by showing sound professional judgment, empathy, and by exerting a positive influence over them. The ethical standard of “Respect” requires members to honour the human dignity, emotional wellness, and cognitive development of students. The ethical standard of “Trust” forms the basis of members’ relationship with their students, school community, and the public.

59The Member failed to adhere to these standards when he showed his Grade [XXX] class “A Little Chaos” without screening it beforehand for inappropriate content. He did not demonstrate professional judgment or commitment to his student’s well-being and development. He breached the trust placed in him to ensure students’ safety. Moreover, he failed to show compassion, empathy, and respect to Student 1 and Student 2, when he disregarded Student 1’s concerns about watching a sex scene in class and then made a disparaging remark to Student 1 and Student 2 after turning the movie back on. Far from supporting the well-being, dignity, and development of Student 1 and Student 2, the Member discounted and invalidated them.

60The Member also failed to demonstrate respect and trust when he used a School computer to access a dating website during class time. Ms. Morris testified that teachers were expected to restrict their use of the School’s computers and internet to professional purposes related to student learning. The Member’s actions showed that he did not value either his students’ time and learning, or the school’s property and rules.

(f) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 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 failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(a) of the Education Act requires teachers to teach the subjects assigned to them diligently and faithfully. The Member failed to meet this requirement when he fell asleep in class on two separate occasions. He also failed to teach the subjects assigned to him diligently and faithfully when he showed his Grade [XXX] class a movie that contained sexually explicit content and which was unrelated to the curriculum. Section 264(1)(c) of the Education Act requires teachers to model high standards of behaviour and to behave as positive role models. Through his sexist, insulting and dismissive comment to Student 1 and Student 2, his inattentiveness to his students (i.e., by falling asleep in class), and his unprofessional accessing of a dating website in front of students, the Member served as a poor role model, contrary to the requirements of the Education Act.

(g) 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)

62The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The public and the teaching profession do not tolerate teachers engaging in sexual misconduct or abusive behaviour. The Member’s actions went beyond showing poor professional judgment when he showed “A Little Chaos” in class. He could have made up for his poor decision of failing to vet the movie in advance of showing it to his class by stopping the film when Student 1 expressed her concerns to him and by respectfully apologizing for his error right away. Instead, the Member exacerbated the problem by turning the movie back on and by making a disparaging comment to Student 1 and Student 2. His behaviour implied that his students had no legitimate right to be offended by the content of the movie and that he had the prerogative as the teacher to play the movie despite Student 1’s discomfort. His comment to Student 1 and Student 2 was highly inappropriate – it was both sexist and sexual in nature. Student 2 testified that she and her friends were made uncomfortable by the situation. On two other occasions, the Member fell asleep in class in the presence of students. He also failed to maintain appropriate professional boundaries by accessing a dating website in class, in the presence of students. As the Member’s conduct included significant moral and professional failings, it can appropriately be characterized as disgraceful, dishonourable, and unprofessional.

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

63The Member’s conduct was unbecoming a member of the teaching profession, contrary to subsection 1(19) of Ontario Regulation 437/97 as it was verbally and emotionally abusive and constituted sexual misconduct. Such misconduct discredits the teaching professional generally as it causes the public to lose trust in the profession. Parents trust teachers to take care of their children, act as positive role models, and foster an encouraging learning environment. The Member’s conduct undermined these expectations. Parents should not fear that their children will be unsupervised because their teacher is asleep, that students will be shown inappropriate content in class, or that their teacher will be a negative role model for students.

H. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

64College Counsel explained that the Panel has the discretion to order a penalty that it considers appropriate in the circumstances and submitted that the appropriate penalty in this case was: an oral reprimand; a suspension of the Member’s Certificate of Qualification and Registration for a period of six months; and the imposition of terms, conditions or limitations requiring the Member to successfully complete coursework on boundary violations, appropriate communication, and classroom management before returning to teaching. According to College Counsel, these orders, taken together, meet the penalty objectives of specific and general deterrence, rehabilitation and remediation, and protection of the public. Further, College Counsel submitted they will help maintain the high standards of the profession and preserve the public’s confidence in teachers.

65College Counsel submitted that there were no mitigating factors in this case, as the Member has not shown remorse and has not engaged in the discipline process in any way. While the Member did eventually write a letter of apology regarding “A Little Chaos” (Exhibit 10), College Counsel submitted that the Panel ought to question whether it was a true expression of remorse, given the timing and circumstances in which he apologized.

66College Counsel submitted that there were several aggravating factors in this case. First, the Member’s sleeping incidents were repeated within a short period time, with the second one occurring just two weeks after Ms. Morris had reprimanded the Member following the first incident. The Member did not learn from his mistake. Second, the Member did not demonstrate any insight into his misbehaviour or concern for the well-being of his students. He openly acknowledged being on a dating website during school hours and made no attempt to hide what he was doing. Third, the Member’s conduct was not an isolated instance of poor judgment. In relation to the movie incident, the Member was not apologetic to his students when he learned that they were uncomfortable viewing the sex scene; instead, he cavalierly turned the movie back on, made a highly inappropriate and disparaging comment to Student 1 and Student 2, and tried to prevent them from reporting the incident to the principal (which sent the message that they were being punished for doing the right thing). Fourth, the Member has a prior discipline history before the Committee, having previously engaged in very serious misconduct that resulted in a one-year suspension. Fifth, the Member’s total lack of cooperation in these proceedings, despite having admitted in his apology letter that showing the movie to his Grade [XXX] class was inappropriate, needlessly lengthened this hearing by requiring the College to call evidence because of the Member’s refusal to participate. Similarly, the Member’s failure to comply with the requirement in the College’s by-laws that all members keep their contact information up-to-date with the College made it even more difficult for the College to conduct this proceeding, because it needed to go to great lengths to ensure the unresponsive Member’s right to procedural fairness.

67College Counsel presented the Panel with the following prior decisions of the Discipline Committee to establish that the penalty it sought fell within the range of acceptable outcomes ordered for similar misconduct: Ontario College of Teachers v. Lewsaw, 2019 ONOCT 35 (“Lewsaw”); Ontario College of Teachers v. Weglarz, 2019 ONOCT 95 (“Weglarz”); Ontario College of Teachers v. Will, 2021 ONOCT 1 (“Will”); Ontario College of Teachers v. Palangio, 2021 ONOCT 40 (“Palangio”); and Ontario College of Teachers v. Georgiopoulos, 2019 ONOCT 37 (“Georgiopoulos”).⁶

68College Counsel explained that, considering the range of acceptable outcomes provided by the case law, and given the aggravating factors in the Member’s case, a six-month suspension is appropriate. The prior cases in which sexually inappropriate materials were presented to students generally resulted in suspensions of two to four months in duration. Considering that the Member also fell asleep in class, which conduct on its own in Georgiopoulos resulted in a one-month suspension, College Counsel submitted that an additional month’s suspension would be appropriate in the Member’s case (increasing the suspension range to three to five months). Moreover, the Member’s prior discipline history, his lack of insight or remorse, and the fact that he also accessed a dating website during class time ought to contribute to an even longer suspension. Finally, because all the prior cases presented (other than Weglarz) were the decided on an uncontested basis and negotiated agreements, College Counsel submitted that the Panel should consider that the suspensions ordered in those cases may have been longer if those hearings had proceeded on a contested basis (because the length of the suspensions would not have been the result of a compromise between the parties). These factors justify a six-month suspension in this case, according to College Counsel.

I. PENALTY DECISION

69The Panel makes the following order as to penalty:

1. The Member is directed to appear before the Committee within 90 days of the Decision, Reasons for Decision and Order relating to this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”).

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six months, commencing on the 15^th calendar day following the date of the Decision, Reasons for Decision and Order relating to this matter.

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

(a) prior to the Member returning to teaching, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary violations, appropriate communication, and classroom management, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;

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

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

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

J. REASONS FOR PENALTY

70In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, rehabilitation and remediation, and public protection. In cases such as this, where the Member’s professional misconduct involved sexual misconduct, the objectives of deterrence and public protection are of primary concern to the Panel.

(1) Reprimand

71The Panel finds that the Member’s various acts of professional misconduct warrant a reprimand. Teachers are expected to fulfill their professional obligations diligently and faithfully, to act professionally, to serve as positive role models, and to not put the safety and well-being of students at risk. The Member failed in all these respects when he fell asleep in class, used School property and resources to access dating websites while in the presence of students, showed his Grade [XXX] class a movie that contained sexually explicit content, and made an inappropriate and disparaging comment to Student 1 and Student 2 in response to their concerns about the movie. 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, enhance the transparency of the discipline process, and assure the public that the College does not tolerate acts of misconduct like those in which the Member engaged.

(2) Suspension

72The Panel finds that a six-month suspension is reasonable and appropriate in this case. In coming to this order, the Panel recognizes the legal principle that like cases should be treated alike. College Counsel provided several cases for the Panel’s consideration, wherein the Discipline Committee ordered suspensions in the range of one to four months, in addition to ordering reprimands and coursework. The Panel has given careful consideration to these cases and finds that a six-month suspension is appropriate in the Member’s case given the aggravating circumstances that will be described below, which distinguish the Member’s case from the case law provided and weigh in favour of a more severe penalty.

73The Panel finds that there were several aggravating factors and no mitigating factors in this case. First, the nature of the misconduct in this case was very concerning, as the Member has engaged in sexual misconduct. Second, the Member’s misconduct was repeated and it was not a momentary lapse in judgment. In relation to the sleeping incident, the Member repeated his behaviour mere weeks after being reprimanded by his principal. Third, the Member showed very little insight into his misconduct. In relation to the movie incident, not only did he turn the inappropriate movie back on after learning that it made students feel uncomfortable, but he also then disparaged those students and tried to prevent them from reporting his conduct to the principal. It is very concerning that the Member tried to stop his students (who had the courage to stand up to him) from doing the right thing. Fourth, the Member’s sexual misconduct involved young students who were in Grade [XXX]. Fifth, the Member has a prior discipline history with the College, having previously engaged in very serious misconduct of an unrelated, criminal nature that resulted in a one-year suspension. Sixth, the Member was entirely uncooperative, having been provided with repeated reminders about the hearing date but not attending or otherwise participating in these proceedings.

74The Panel finds that these aggravating factors make the Member’s case more serious than the prior cases provided by College Counsel in which suspensions in the range of one to four months were ordered. In Georgiopoulous, a member received a one-month suspension for falling asleep in class, using his telephone in class, and yelling at students. Georgiopoulous differs significantly from the Member’s case in that the Member engaged in sexual misconduct, whereas Georgiopoulous did not involve sexually inappropriate behaviour. The Member’s conduct was considerably more serious than that in Georgiopoulous and should therefore result in a considerably more serious outcome. Georgiopoulous was also an uncontested hearing, in which the penalty was the result of a compromise between the parties (which often results in more lenient penalties than those that might have been ordered in a contested case).

75In Will, a member received a two-month suspension for showing his class violent videos, and for swearing and making sexually inappropriate jokes in front of students. There are several aggravating factors in the Member’s case that weigh in favour of a more severe penalty than in Will.First, the Panel finds the Member’s misconduct considerably more serious than that in Will because the Member’s students were much younger (Will involved high school students; whereas Student 1 and Student 2 were only [XXX] and [XXX] years old in the Member’s case). Second, unlike in Will, the Member continued to play the inappropriate movie for his students after they expressed concerns about the movie’s sexual content and tried to turn off the movie because it made them uncomfortable. Third, unlike in Will, the Member also had supervision issues (i.e., falling asleep in class) and he accessed personal dating sites during class time and in front of students. Fourth, the penalty in Willwas the result of a compromise, unlike in the Member’s case where he did not participate in his proceedings.

76In Weglarz, a member received a three-month suspension for sending emails containing sexually explicit content to colleagues and school administrators. The Panel finds that the Member’s case is considerably more serious than Weglarz because the Member’s sexual misconduct involved students (as opposed to adult colleagues and administrators, which was the case in Weglarz). In Weglarz, the panel specifically observed that the penalty might have been more severe if Mr. Weglarz had directed his sexually inappropriate communications at students. Mr. Weglarz also had no prior discipline history at the College, unlike the Member, which weighs in favour of a more severe penalty in the Member’s case.

77In Palangio, a member received a three-month suspension for showing sexually inappropriate videos to his class on multiple occasions, and for failing to adequately supervise students. While this conduct was similar to that in the Member’s case, there was no finding of sexual misconduct in Palangio and that case was decided by way of agreement such that the penalty was the result of a compromise between the parties. It is often seen as a mitigating factor for a member to come to an agreement with the College. While the Member’s failure to come to an agreement in this case is not an aggravating factor, it is likely that the penalty in Palangio was more lenient than it otherwise might have been, because of the parties’ negotiated settlement. Moreover, the Member’s prior discipline history with the College is an aggravating factor in the Member’s case, whereas the member in Palangio had no prior discipline history with the College.

78In Lewsaw, a member received a four-month suspension for providing students with sexually explicit materials and for making comments of a sexual nature to students, among other things. While this conduct is also somewhat similar to the Member’s conduct, Lewsaw did not also involve a failure to adequately supervise students (i.e., falling asleep in class) or the conducting of personal affairs in class (i.e., accessing a dating website in front of students). Lewsaw was also decided by way of agreement, unlike the Member’s case, in which the penalty is not the product of a compromise between the parties. In Lewsaw, the member’s prior history (i.e., having been previously cautioned by the College’s Investigation Committee) was less serious than the prior discipline history of the Member in this case, who received a one-year suspension from the Discipline Committee as a result of a prior finding of professional misconduct.

79In light of the numerous aggravating factors in the Member’s case, the absence of any mitigating factors, and taking into account the increased severity of the Member’s conduct as compared to the prior cases provided by the College, the Panel finds that a suspension of six-months will appropriately achieve the sentencing objectives of specific and general deterrence, and protection of the public.

(3) Coursework

80The Panel orders the imposition of terms, conditions, or limitations on the Member’s certificate, in the form of coursework to be completed prior to returning to teaching, on boundary violations, appropriate communication, and classroom management. The coursework will address the Member’s professional misconduct and is meant to achieve the penalty objectives of rehabilitation and remediation, by educating the Member, reminding him of his professional obligations, and providing him with the skills necessary to ensure that he does not engage in similar behaviour in the future, should he return to teaching.

81The Panel is satisfied that the penalty it has ordered is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

K. Costs SUBMISSIONS OF COLLEGE COUNSEL

82College Counsel sought an order for costs payable by the Member to the College pursuant to subsection 30(5) at paragraph 4 of the Act. College Counsel submitted that the Panel should be guided by Rule 16.05(3) and Tariff A of the Rules in making the costs order. Read together, Rule 16.05(3) and Tariff A provide that the College can ask the Panel to order costs and does not need to provide evidence of the actual costs of a day of hearing if the amount claimed is equal to or less than $10,000 per day of hearing. College Counsel requested a total costs order of $10,000.

83College Counsel referred the Panel to Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”) for principles to guide its decision regarding costs. College Counsel also provided the Panel with the following additional cases where costs were ordered against members: Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28 (“Chong Yen”) and Ontario College of Teachers v. Wilson, 2020 ONOCT 151 (“Wilson”). In Chong Yen, the panel ordered costs in the amount of $10,000 against the member. The panel found that the member had been uncooperative with the College and completely refused to engage in his discipline proceedings, despite the College’s numerous attempts to communicate with him. Had the member cooperated with the College, the parties could have agreed on certain facts and shortened the proceedings. Similarly, the member in Wilson did not engage in the discipline process in any meaningful way, failed to respond to College Counsel’s communications, and as a result the College was required to call witnesses to prove its case. The Wilson hearing took a total of two days and the Discipline Committee ordered costs of $20,000 against the member.

84College Counsel submitted that costs were appropriate in this case because the Member was entirely uncooperative with the College in its attempts to contact and coordinate with him, and in such circumstance the College and its membership ought not to be fully and solely responsible for the costs of the Member’s discipline proceedings. College Counsel devoted significant resources in trying to contact the Member and effecting service, to no avail, as the Member did not update his contact information with the College. College Counsel reminded the Panel that the Member admitted he had shown a movie with inappropriate content, in his letter of apology (Exhibit 10), and submitted that the parties could have worked to a resolution or an agreed statement of facts that would have shortened the time of, spared witnesses from testifying at, and reduced the expense of, a contested hearing.

85College Counsel advised the Panel that the Member had been notified that the College would seek costs if it was successful at proving the allegations against the Member. College Counsel further submitted that there was no evidence before the Panel to indicate that the Member cannot afford to pay costs, and that the burden of establishing the inability to pay costs lies with the Member.

L. COSTS DECISION

86The Panel makes the following order as to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $10,000, within 120 days of the date of the Decision, Reasons for Decision and Order of the Panel.

M. REASONS FOR COSTS

87The Committee is empowered by subsection 30(5) at paragraph 4 of the to order costs payable by a member to the College where it has found that member guilty of professional misconduct. Rule 16 of the Rules sets out the applicable procedure where costs are sought by either party. Pursuant to Rule 16.05(3), where the College requests costs, it is not required to provide evidence of the costs of a day of hearing if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000.

88Hall provides the panel with guidance as to the factors to be considered when making a costs order:

Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.

Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.

Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.

Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.

The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.

89After considering the factors in Hall, the Panel finds that it is appropriate to order costs against the Member in the amount of $10,000, payable within 120 days of the Decision, Reasons for Decision and Order of the Panel.

90The Panel agrees with Hallthat the goal of costs orders is the fair allocation of costs incurred in proceedings. Costs are a mechanism to ensure the College’s membership is not held entirely financially responsible for proceedings where a member has been found guilty of professional misconduct, particularly where the member has failed to participate in the hearing process in any meaningful way. In this case, the Member did not respond to any of College Counsel’s communications, including communications (deemed served) which indicated that the College would seek costs if it successfully proved the allegations against the Member. While the College always bears the burden of proof, the Panel accepts College Counsel’s submissions that, had the Member responded to College Counsel’s communications, the parties could have made efforts to resolve the matter or come to an agreement on certain facts, which would have shortened the proceedings. Instead, the College conducted a full-day hearing and called three witnesses in support of its case. Two of these witnesses were young individuals, who were [XXX] and [XXX] years old at the time of the hearing. The College was successful in proving all the allegations against the Member (apart from the allegation that was withdrawn). There was no evidence about the Member’s inability to pay any costs ordered, or why a costs order would not be appropriate in this case.

91In the circumstances, the Panel is satisfied that an order of $10,000 of costs payable by the Member to the College is just and appropriate.

Date: April 12, 2022

Stéphane Vallée, OCT Chair, Discipline Panel

Rachelle Coleman Member, Discipline Panel

Élaine Legault Member, Discipline Panel

Footnotes

1. 1As of January 20, 2022 (i.e., between the time of the hearing and the release of these reasons), section 9.09 of the by-laws was re-numbered as section 8.09.
2. 2As of January 20, 2022 (i.e., between the time of the hearing and the release of these reasons), section 31 of the by-laws was re-numbered as section 25.
3. 3See sections 8.10 and 8.11 of the College by-laws with respect to deemed service. At the time of the hearing, these provisions were set out at sections 9.10 and 9.11 of the by-laws.
4. 4Allegation was withdrawn at the request of College Counsel.
5. 5As of January 20, 2022 (i.e., between the time of the hearing and the release of these reasons), section 32 of the by-laws was re-numbered as section 26. At the time of the alleged conduct, the professional and ethical standards were set out at section 32 of the by-laws.
6. 6College Counsel reminded the Panel that sexual misconduct became a distinct head of professional misconduct in December 2016. Any discipline cases involving conduct before that time (as many of the cases presented were) would not have included allegations that the member had engaged in sexual misconduct, even if the conduct could properly meet the definition of sexual misconduct.