Citation: Ontario College of Teachers v Texeira 2022 ONOCT 40

Date: 2022-04-13

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

James Ian Texeira, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JAMES IAN TEXEIRA (REGISTRATION #277442)

PANEL: Hanno Weinberger, OCT, Chair

Scott Barker, OCT

Emma Rhodes

HEARD: April 7, 2022

Ava Arbuck, for the Ontario College of Teachers

Amin Nur, for James Ian Texeira

Ahmad Mozaffari, 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 April 7, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2James Ian Texeira (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 October 8, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that James Ian Texeira is guilty of professional misconduct as defined in the Act in that:

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

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

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

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

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

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

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

James Ian Texeira was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Ottawa-Carleton District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in Ottawa, Ontario.
The Member taught [XXX] to mainstream students as well as international students.

Racist Conduct and Comments

Between approximately September 2019 to October 2019, during [XXX] class, the Member:

(a) divided students into competing [XXX] teams based on shirt colours and the friend groups shared amongst new immigrant students which sometimes resulted in students being divided along the lines of race and/or nationality, for example, Canadian, Vietnamese, Korean, etc.;

(b) commented to an international student who was sitting with a Canadian student, “Oh, you’re not sitting with your friends today?” which made the student feel uncomfortable;

(c) on one occasion, when he chose a team, selected two Black students and then looked at a student of Arab descent and said words to the effect of, “close enough, so you be a captain, too”;

(d) did not adequately and effectively intervene when students in his class used racially insensitive language and swear words;

(e) made comments to his class about how students had chosen to seat themselves using words to the effect of, “black students with black students, white students with white students”;

(f) discussed common stereotypes with his class that students should avoid relying upon, such as the stereotype that Korean students are good at certain things and that Black students are good at basketball.

Insensitive Conduct and Comments

Between approximately September 2019 to October 2019, the Member made inappropriate comments to and/or about international students, who did not understand what he said in class and/or who were late to class, in that he:

(a) commented to students in his class, “I love teaching [XXX], but sometimes they don’t understand what I’m saying” and/or “do you get it?” or words to that effect and/or continued to nod as if to imply that the students should nod to show whether or not they understood;

(b) commented to international students if the students do not try in class, “You pay $15,000.00 to be here,” or words to that effect;

(c) joked to an Asian student when he arrived late for class, “It’s okay, you pay $15,000.00 to be here, take all the time you need,” or words to that effect;

(d) made jokes in class such that the Canadian students would understand and laugh at his jokes, whereas the international students would not laugh and the Member commented, “Oh, they don’t understand my joke…” and/or “okay, you didn’t understand,” or words to that effect, upon which he would attempt to re-explain the joke to the international students later;

(e) called on students in class, and, upon learning a student’s name, would make a point of saying that the names were hard for him to pronounce because he had difficulty hearing the inflections, which caused the students fluent in English to laugh;

(f) despite knowing that a student was from South Korea, said hello to this student in Vietnamese by mistake;

(g) commented to a male English language learner, when he did not understand the Member while dividing students into [XXX] teams based on shirt colours, “Oh, you don’t know your shirt colours. You might have to take AO again,” or words to that effect.

On one occasion, a [XXX]-year-old male student in his class was playing [XXX]. The student did not [XXX] and his team lost [XXX]. The Member commented to the student that he was “useless” and/or “useless to the team” and told the male student to get out of his class in front of his classmates.

Sexist Conduct and Comments

Between approximately September 2019 to October 2019, the Member made comments to his class of a sexual nature, in that he:

(a) commented to students, “I didn’t know you were open for business,” or words to that effect when students were sitting in a relaxed way in class;

(b) commented to two male students who were sitting close together and/or were touching one another, “I didn’t know that you were that close” or words to that effect, which resulted in the class laughing;

(c) commented to students with their hands in their pockets, “take your hands off your junk, stop putting your hands in your pockets,” or words to that effect.

Board Investigation

Following the investigation, the Board concluded that the manner in which the Member treated students constituted a form of racially based harassment. The Board also concluded that the Member had made inappropriate comments of a sexual nature in front of students. The Member was given a three day suspension without pay by the Board. Attached hereto and marked as Exhibit “B” is a copy of the discipline letter dated November 5, 2019.

Current Status

The Member is currently teaching at the School.

GUILTY PLEA

By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7), 1(7.2), 1(14), 1(15), 1(18), and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Ontario College of Teachers Act, 1996.
By this document the Member states that:

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

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

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

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

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

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

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

D. DECISION

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on April 7, 2022, 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(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member repeatedly engaged in racist and insensitive conduct towards students and exposed students to remarks of a sexual nature.

8The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97 by repeatedly making racist and insensitive comments towards students. The Member’s comments included questioning an international student who was sitting with a Canadian student (“Oh, you’re not sitting with your friends today?”); insinuating that a student of Arab descent was similar to two black students (“close enough, so you be a captain, too”); using words such as “black students with black students, white students with white students” in relation to how students were seated in class; telling an international student that he had to take a beginners’ class in English again (“Oh, you don’t know your shirt colours. You might have to take AO again”); and, inappropriately joking to an Asian student that he could take all the time that he needed because of the school fees that he was paying. The Member also called a student “useless” and told the student to get out of class in front of his classmates. Teachers must be culturally sensitive and respectful in all their interactions with students. Making racist, insensitive and demeaning comments, as the Member did, is inappropriate and offensive and amounts to verbal abuse of students by the Member.

9The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member’s repeated racist and insensitive conduct towards students would reasonably have had a negative psychological or emotional impact on international students. For instance, dividing students into teams on the basis of race and making jokes which were intended for only Canadian students to understand, would have made international students feel isolated and excluded. Moreover, when the Member called on students in class and said that the names were hard for him to pronounce because he had difficulty hearing the inflections, this caused other students to laugh. Such an experience would have been humiliating for the international students. Additionally, the Panel received evidence that the Member’s racist comment to an international student who was sitting with a Canadian student (“Oh, you’re not sitting with your friends today?”) made the student feel uncomfortable. Similarly, the Member’s sexual remarks would have been distressing to students, particularly given the position of trust and authority that the Member held in relation to his students.

10The Member engaged in sexual misconduct as defined in section 1 of the Act. “Sexual misconduct” is defined in the Act as:

1(1) 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.

The Member exposed students to remarks of a sexual nature. Between September 2019 and October 2019, the Member made several remarks with sexual overtones to his class such as: commenting to students who were sitting in a relaxed way that they were “open for business”, commenting to students with their hands in their pockets to “take your hands off your junk” and commenting to two male students who were sitting close together and/or touching one another, that the Member did not know the students were “that close”, which resulted in the class laughing. A reasonable person would expect that when an adult teacher, who holds a position of trust and authority, exposes students to these types of sexualized remarks, it would be distressing or detrimental students’ well-being or create a negative school environment for them. For instance, it would have been embarrassing and distressing for the two male students when the class laughed at the Member’s comment. Therefore, the Panel accepts the parties’ agreement that the Member’s conduct in this case meets the definition of sexual misconduct under section 1 of the Act.

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. In particular, the Member breached the standards of practice of “Commitment to Students and Student Learning” and “Leadership in Learning Communities” as well as the ethical standard of “Respect”. Members are required to treat students equitably, with respect and be sensitive to factors that influence individual student learning. They are also required to promote and participate in the creation of collaborative, safe and supportive learning communities. Additionally, members must honour human dignity, emotional wellness and cognitive development as well as model respect for spiritual and cultural values. By repeatedly engaging in demeaning, racist, and insensitive comments and conduct toward students, the Member discriminated on the basis of race and demonstrated a lack of tolerance and respect for cultural diversity. Furthermore, such behaviour promotes division and creates a poisoned learning environment. The Panel therefore accepts the parties’ agreement that the Member’s conduct was incompatible with the standards of the teaching profession.

12The 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)(b) provides that it is the duty of a teacher to encourage students in the pursuit of learning. The Member’s racist behaviour towards international students in front of the class and his use of demeaning terms like “useless” to describe a student in front of his teammates, would have been discouraging to those students. Section 264(1)(c) is typically understood to mean that teachers must act as positive role models. Their conduct must be reflective of the acceptance and inclusiveness expected in Ontario’s schools. The Member not only engaged in racist behaviour, but he also failed to adequately intervene when students in his class used racially insensitive language. By doing so, the Member taught students that racist language and behaviour were acceptable. The Member therefore acted as a poor role model and failed to fulfil the duties of a teacher.

13The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to maintain appropriate professional boundaries with students and be culturally inclusive in their interactions with students. The Member did the opposite by exposing students to sexual remarks and repeatedly engaging in racist comments and behaviour toward students. The Member’s conduct can therefore be characterized as disgraceful, dishonourable and unprofessional.

14The 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. By repeatedly engaging in racist comments and behaviour as well as exposing students to sexualized comments, the Member undermined the reputation of the teaching profession as a whole and breached the trust that the public places in the profession.

F. PENALTY DECISION

15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on April 7, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

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 via videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of five (5) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom communication and sensitivity, subject to the following conditions:

(i) the Member will provide to the course practitioner approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) following 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 practitioners 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 which:

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

G. REASONS FOR PENALTY DECISION

16The 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.² 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. Will, 2021 ONOCT 1, Ontario College of Teachers v. Lewsaw, 2019 ONOCT 35, and Ontario College of Teachers v. Boyce, 2021 ONOCT 112.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are: (1) the repeated nature of the Member’s racist and insensitive comments which were directed at international students, (2) the fact that the Member was an experienced teacher who should have known better, and (3) the Member’s racist comments and behaviour perpetuated stereotypes. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

18The Panel finds that the Member’s racist, insensitive, and sexual comments and conduct warrant a reprimand. Members are expected to maintain appropriate professional boundaries with students and be respectful and culturally inclusive in their interactions with students. The Member did the opposite. 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.

19Given the nature and severity of the Member’s misconduct, the Panel finds that a five-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. The suspension also instills public confidence in the profession and the College’s ability to address such unacceptable behaviour. In accordance with the parties’ joint submission, the Member’s suspension will begin on April 22, 2022, which is 15 days after the Panel’s Decision and Order.

20The Panel finds that the course of instruction regarding classroom communication and sensitivity will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will inform his future interactions with students.

21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: April 13, 2022

Hanno Weinberger, OCT

Chair, Discipline Panel