Ontario College of Teachers v. Weisleder, 2022 ONOCT 52

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Weisleder 2022 ONOCT 52

Date: 2022-05-16

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

Barry Adrian Weisleder, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BARRY ADRIAN WEISLEDER (REGISTRATION #242835)

PANEL: Lois Figg, Chair Damienne Lebrun-Reid Brian Serafini, OCT

HEARD: May 4, 2022

Ava Arbuck, for the Ontario College of Teachers Christopher Reid, for Barry Adrian Weisleder Julie Maciura, 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 4, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

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

A. PUBLICATION ban

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

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated February 24, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Barry Adrian Weisleder is guilty of professional misconduct as defined in the Act in that:

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

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

(c) 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);

(d) 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);³

(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. STATEMENT OF UNCONTESTED FACTS

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

1. Barry Adrian Weisleder is 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 with respect to the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an occasional teacher.

[XXX]:

3. On March 8, 2018, the Member was employed as an occasional teacher at [XXX]in Toronto Ontario. Student 1 was a female Grade [XXX] student in the Member’s class.

4. When the Member arrived, the class was noisy. He took attendance and told the class that if they didn’t respond when he called their names, he would mark them absent. The Member did not knowingly mark absent any students who were present. Some students may have been marked absent even though they were present.

5. When some students approached the Member to ask him to mark them present, he corrected the attendance sheet accordingly. When Student 1 asked the Member if he marked her absent, he shrugged his shoulders in response. Student 1 grabbed the attendance from the Member as the Member was about to lead the class to the school library, in accordance with the lesson plan. Student 1 took the attendance to the teacher’s desk, and started to erase the absent mark near her name.

6. When the Member saw what Student 1 was doing, he retrieved the attendance, making contact with her in the process.

7. Student 1 was not injured as a result of her interaction with the Member. While students who observed the exchange were shocked at the Member’s aggressive reaction to Student 1, some did not believe that the Member intended any physical contact with Student 1 and was focused solely on taking back the attendance, which was crumpled in the process.

Lawrence Park Collegiate Institute:

8. On April 27, 2018, the Member was employed as an occasional teacher at Lawrence Park Collegiate Institute in Toronto Ontario.

9. The Member was assigned to teach a Grade 9 English class. Approximately five to ten minutes after he arrived to class, another teacher poked his head in and asked, “what are you doing here?”. The Member walked out and did not return.

10. No school administrator or personnel contacted the Member that day concerning that period at the School. A number of students from the class were interviewed and reported they were surprised that the Member left and they did not have a teacher for the period.

11. Later that day, the Member was assigned to teach a Grade 11 English class. The Member stood in the classroom doorway for a few minutes while the class worked on assignments. The room was hot and the windows did not open. He did not realize he had stepped into the hallway while he was checking his cell phone.

12. The Principal and the Vice-Principal responded to a report about the noise from the Member’s phone and came upon the Member in the hallway, typing on his phone. When asked why he was not in the classroom supervising his students, the Member told the Principal that the classroom was unbearably hot. The Member was asked to return to his class and his students, which he did.

Board Discipline:

13. The Board investigated and met with the Member regarding the incidents reported at [XXX] and Lawrence Park Collegiate Institute. The Board imposed discipline. A grievance was filed. The parties reached a settlement. As part of the settlement, the Member resigned from the Board, effective June 5, 2018. Neither side admitted fault.

PLEA OF NO CONTEST

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

15. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(11), 1(14), 1(15), 1(18) [unprofessional], 1(19).

16. By this document the Member states that:

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

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

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

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

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

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

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

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

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

D. DECISION

6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (b) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.1) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought as it would be duplicative to pursue findings under both subsections 1(5) and 1(14) of Ontario Regulation 437/97. College Counsel stated that the Panel’s permission to withdraw the 1(7.1) allegation was being sought because the evidence did not support a finding under this head of misconduct. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on May 4, 2022 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(11), 1(14), 1(15), 1(18) (unprofessional only) and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 13 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member did not properly manage or supervise his classroom on a number of occasions.

9The Member failed to adequately supervise the students assigned to his professional supervision on April 27, 2018, contrary to Ontario Regulation 437/97, subsection 1(11). He abandoned his Grade 9 English class within five to 10 minutes after arriving to class, leaving the students without a teacher for that period. This was a clear violation of subsection 1(11). Teachers are entrusted with instructing students in their class, and are responsible for ensuring the well-being and safety of students; a responsibility that requires, at the very minimum, the teacher’s physical presence in class. Later that day, the Member stepped out into the hallway to use his cell phone while his Grade 11 class was doing classwork. It is inappropriate for teachers to leave the classroom to use their phone during class time. A teacher who is using their phone and leaves the classroom to do so is not demonstrating the attention and care for their students as expected by subsection 1(11) of Ontario Regulation 437/97.

10The Member’s conduct as outlined in the Uncontested Facts was contrary to the professional and ethical standards set out in section 26 (previously section 32) of the College’s by-laws, and therefore contravened subsection 1(14) of Ontario Regulation 437/97. The Member failed to show “Care” and “Respect” to Student 1, as required by the Ethical Standards for the Teaching Profession, when he dismissively shrugged his shoulders in response to her reasonable question about whether or not she was incorrectly marked as absent. The Member’s dismissive response to Student 1 lacked compassion and fair-mindedness, as the Member had just corrected the attendance sheet for other students without issue. After Student 1 grabbed the attendance sheet from the Member to erase the absent mark near her name, the Member reacted aggressively and in a way that shocked other students. This indicates to the Panel that the Member did not show adequate care and empathy in his actions and did not consider the impact his actions would have on the well-being of his students. Moreover, the Member’s conduct fell below the ethical standards of “Trust” and “Integrity” when he abandoned his Grade 9 English class and left his Grade 11 English class unsupervised while he used his phone in the hallway. Teachers are entrusted with student safety and cannot leave their classes unattended. The Member’s disregard for his professional responsibilities showed a lack of integrity. Similarly, the Member failed to abide by the practice standard “Leadership in Learning Communities” as his above-mentioned conduct did not ensure a safe and supportive classroom for his students.

11The Member failed to exercise the duties of a teacher set out in section 264(1) of the Education Act and therefore contravened subsection 1(15) of Ontario Regulation 437/97. Subsection 264(1)(a) of the Education Act requires teachers to teach “diligently and faithfully the classes or subjects assigned” to them and subsection 264(1)(b) requires them to “encourage […] pupils in the pursuit of learning”. Clearly, a teacher who abandons his class, as he did with the Grade 9 English class, or leaves the class to use his phone, as he did with his Grade 11 English class, instead of attending to his students, cannot fulfill these professional obligations. The Member also failed to adhere to the obligation under subsection 264(1)(e) to maintain proper order and discipline, which teachers cannot do when they leave students unsupervised. The Member’s actions with respect to the two English classes also contravened the expectation set out in subsection 264(1)(c) of the Education Act that he would set a good example for students by encouraging and demonstrating strong moral virtues. When a teacher blatantly abandons their professional responsibilities, they are inappropriately signalling to students that a strong work ethic is not important. Furthermore, when teachers react aggressively towards students, as the Member did to Student 1, they set a poor example for all students who are observing their behaviour.

12The Panel finds that the Member engaged in conduct that would reasonably be seen by the membership as being unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). While College Counsel submitted that the Panel should formally withdraw the “disgraceful” and “dishonourable” portions of this allegation, this is unnecessary. Subsection 1(18) relates to conduct that is “disgraceful, dishonourable or unprofessional”. The terms in this subsection are disjunctive and, in this case, the Panel agrees with the parties that the Member’s misconduct was unprofessional only. The Member disregarded his obligations regarding appropriate classroom management in the way that he responded to Student 1, and his duties to care for and supervise the students assigned to him. He acted irresponsibly and with poor judgment, but his actions did not show the level of moral turpitude that would rise to the level of “disgraceful” or “dishonourable” conduct.

13The Member’s conduct was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. Teachers hold a position of trust and authority in the classroom. This role must be taken seriously and exercised diligently and with good judgment. The public’s confidence in teachers is eroded when teachers respond in a manner that is perceived by students as aggressive in the classroom, leave the classroom unsupervised for any reason, including to use their cellphones, or abandon their students altogether.

F. PENALTY Decision

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 4, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

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

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

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

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

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

(b) within 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.

G. REASONS FOR PENALTY DECISION

15The 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.⁴ 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. Richard, 2015 ONOCT 68; Ontario College of Teachers v. Gocking, 2019 ONOCT 52; and Ontario College of Teachers v. Weller, 2020 ONOCT 168.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The Panel finds that it is an aggravating factor that the Member’s misconduct was not an isolated incident but occurred on two days at two different schools, involving three classrooms. He was also an experienced teacher who should have had the professionalism and judgment to respond appropriately to Student 1. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing. He has not been the subject of discipline proceedings in the past and these incidents occurred over a short period of time. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s inappropriate conduct warrants a reprimand. Teachers are entrusted with the safety and well-being of students and must therefore supervise their students and properly manage their classroom. 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 and will promote public protection and confidence in the integrity of the discipline process.

18The Panel finds that requiring the Member to successfully complete a pre-approved course of instruction regarding classroom management and supervision, prior to commencing or resuming a teaching position, will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3As of January 20, 2022, section 32 of the by-laws has been re-numbered to section 26 of the by-laws.
4. 4See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Timothy Edward Bradley v. Ontario College of Teachers, 2021 ONSC 2303.