DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Paterson 2022 ONOCT 58

Date: 2022-05-03

DECISION ON FINDING AND REASONS FOR DECISION

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

AND IN THE MATTER OF a discipline proceeding against

Paul Joseph Paterson, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PAUL JOSEPH PATERSON (REGISTRATION #426411)

PANEL: John Hamilton, OCT, Chair

Josée Landriault, OCT

HEARD: October 13-14, 2020, January 25-26, 2021 and February 12, 2021

Danielle Miller, for the Ontario College of Teachers

William Markle, QC, for Paul Joseph Paterson

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 October 13 and 14, 2020, January 25 and 26, 2021 and February 12, 2021, under section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 and Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2The Panel was originally comprised of three members: Mr. John Hamilton, Ms. Josée Landriault and Dr. Richard Filion. Dr. Filion participated in the hearing but, after closing submissions, became unable to continue on the Panel. As a result, deliberations were concluded by the remaining members: Mr. Hamilton and Ms. Landriault. Pursuant to section 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the remaining members of the Panel were able to complete their deliberations and give a decision in this matter.

3A Notice of Hearing (Exhibit 1) dated February 1, 2019, was served on Paul Joseph Paterson (the “Member”). On September 9, 2020, the Member was notified that the hearing would proceed electronically due to the public health restrictions imposed during the COVID-19 pandemic.

4On October 13, 2020, at the start of the hearing on the merits, the Member brought a motion seeking an adjournment of the electronic hearing until such time as the hearing could be held in person. The Panel denied the Member’s motion on October 13, 2020. The hearing on the merits continued on October 14, 2020, January 25 and 26, 2021 and February 12, 2021, via electronic hearing. After hearing closing submissions by the parties, the Panel reserved its decision on finding.

5The Panel finds that the Member has engaged in professional misconduct by breaching subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The College has not proven, on a balance of probabilities, that the Member breached subsection 1(11). The College withdrew all other allegations of professional misconduct. These are the Panel’s reasons for its findings.

A. PUBLICATION ban

6The 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.

7Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. THE MOTION

8At the outset of the hearing, the Member brought an oral motion requesting an adjournment of the proceedings until such time that this matter could be heard in person. The Member brought the motion on the basis that hearing this matter electronically is likely to cause significant prejudice to the Member because it would be more difficult for the Member to effectively cross-examine witnesses and for the Panel to assess witness character and credibility.

C. SUBMISSIONS OF Member’s COUNSEL ON MOTION

9Member’s Counsel submitted that witness credibility would be an extremely important part of this hearing and that the Panel’s ability to assess credibility would be restricted if the hearing does not occur in person. During a hearing, a trier of fact forms the impression that the evidence put forward by a witness is reliable when a witness projects honesty and integrity, which occurs when both the trier or fact and the witness are in the same physical room. A trier of fact’s ability to interpret the character and demeanour of a witness is compromised in an electronic hearing because the chemistry between the questioner and the witness that exists in person is lost. The Member further argued that the authorities brought by the College downplay that physical presence in a hearing room is consequential to witness credibility assessments. The Member argued that the cases provided by College Counsel contain opinions that are obiter dicta on how to deal with the novel circumstances of the COVID-19 pandemic. None of the authorities support the position that hearings should automatically go forward electronically instead of in person. Rather, they support the position that each case should be judged on its own merits.

10According to Member’s Counsel, the fact that this hearing may proceed electronically based on the Rules and the SPPA should not in and of itself determine that the hearing should proceed in that fashion and supersede the right of the Member to an in-person hearing. The Member should be given an opportunity to have a fair in-person hearing as was anticipated in the Notice of Hearing dated February 1, 2019.

11Member’s Counsel further noted that the College did not amend the Notice of Hearing to proceed electronically after postponing the previously scheduled May 5, 2020, in-person hearing date in response to the COVID-19 pandemic. On August 20, 2020, College Counsel alerted the Member by letter that all in-person hearings at the College were postponed until further notice, in accordance with public health guidelines. Notwithstanding the COVID-19 pandemic, Member’s Counsel submitted that there was still an understanding between the parties that, on subsequent dates, the hearing would proceed in person. The sudden change in direction and urgency to convert the hearing from in-person to electronic when compared to the four-and-a-half years that it has already taken this matter to proceed through the College’s process is not warranted.

12The Member therefore requested that the Panel grant the Member’s motion and order an adjournment of this matter until such time that it can be heard in person. In the alternative, the Member proposed that the College open its case electronically and put forward the video evidence that it intends the Panel to view. After the video evidence is played, the Member proposed that the Panel adjourn and order that the balance of the proceedings continue in person.

D. SUBMISSIONS OF College Counsel on MOTION

13College Counsel submitted that Rule 8, at the time of the hearing, stated that the Panel may order that a portion or that an entire hearing be held electronically, unless it is satisfied that holding an electronic rather than an in-person hearing is likely to cause a party significant prejudice. First, the test makes clear that there is a presumption in favour of proceeding electronically if the Discipline Committee chooses to exercise its discretion to do so. If a party objects to proceeding electronically, then that party bears the onus of demonstrating that the electronic format of the hearing would likely cause them significant prejudice. Contrary to the Member’s submission, it is the Member and not the College who bears the onus to show that he is likely to suffer significant prejudice if the hearing continues electronically. College Counsel argued that apart from general assertions, Member’s Counsel has not given any evidence to establish that the Member has met the Rule 8 test.

14College Counsel took the Panel to several recent cases where tribunals and courts considered objections to electronic proceedings, some in the context of the COVID-19 pandemic wherein in-person hearings were suspended due to safety concerns resulting from the ongoing health crisis. The case law demonstrates no inherent due process concerns about using video technology to examine witnesses.¹ Moreover, College Counsel argued that this is a more suitable case for an electronic hearing than most. It is not a case where the Panel would be required to make difficult credibility findings. The Member will speak about what occurred in his own words during a video-recorded statement and during his testimony. There will be no testimony from the student complainant in this matter.

15Even in cases where credibility is a significant issue and where a substantial amount of viva voce evidence needs to be heard, case law demonstrates that video technology does not in and of itself prejudice the parties. Electronic proceedings are regularly conducted to ensure continued access to justice and to promote the expeditious resolution of matters.² On the question of whether cross-examination can be conducted as effectively remotely as in person, long before the pandemic, the Supreme Court of Canada ruled in R v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 (at para 88), that while a respondent is entitled to a fair hearing process, a respondent is not entitled to “the most favourable procedures that could possibly be imagined.” Applying the Supreme Court’s ruling, the tribunal of the Law Society of Ontario also concluded in The Law Society of Upper Canada v. Sumner, 2016 ONLSTH 157:

“… [The Respondent’s] right to challenge a witness’ credibility is not absolute. [The Respondent] may legitimately prefer a face-to-face cross examination but does not require one to effectively challenge the witnesses’ credibility” (at para 31).

16The College submitted that the same is true in this case. While the Member would prefer to cross-examine witnesses in person, it is not an absolute right to do so, especially when he has a fair opportunity to do so by way of videoconference. Significant prejudice does not occur simply because the Member cannot cross-examine in his preferred way. As the Member has not demonstrated that it would cause him significant prejudice to proceed electronically, this motion for adjournment should be denied.

17With respect to the Member’s submission that the College was responsible for the postponement of the previously scheduled May 5, 2020, in-person hearing, College Counsel submitted that this was not a unilateral decision made by the College; it was a necessary result of the COVID-19 pandemic and public health restrictions at the time. College Counsel added that they had corresponded with Member’s Counsel on August 20, 2020 in an attempt to come to an agreement about proceeding electronically in this case (Exhibit J). To use the Discipline Committee’s time efficiently, College Counsel advised two months before the start of the hearing that, if the Member wanted to object to proceeding electronically, he should bring a motion for adjournment without delay and before the October 2020 dates set aside for the hearing on the merits. Alternatively, College Counsel proposed to use the already-set hearing dates to open the College’s case electronically to call the evidence of the police officer and play the videotaped police interview of the Member. Even if there were no agreement between the parties on whether the remainder of the hearing should proceed electronically, at least the video of the police interview could easily be presented and viewed electronically. Member’s Counsel rejected College Counsel proposal on September 8, 2020, indicating (incorrectly) that the Panel did not have the authority to proceed electronically and awaited the start of this hearing to bring his adjournment motion.

E. Reply Submissions of Member’s Counsel on Motion

18According to Member’s Counsel, the College has taken the narrow perspective that credibility is not an issue because the Panel would be viewing a video involving what the Member had to say to a police officer on March 22, 2016. However, this does not discount the issue of credibility for the witnesses that the College intends to call. First, there would be issues of credibility with the police officer. Her perceptions of the Member impacted the way that the interview with the Member was undertaken. Second, the principal from the school board who would be called to speak to the role of a vice principal was a witness in the Member’s criminal trial, which also raises issues of credibility. Contrary to College Counsel’s submissions, the way in which these witnesses will give evidence is extremely important.

19Moreover, Member’s Counsel submitted that there was no urgency to move from one format of the hearing to another. At the time, it was unknown whether the available dates to proceed electronically would be that much sooner than any prospective in-person dates, given the number of cases that were being postponed in general due to the pandemic. After a four-and-a-half-year delay, the College is suggesting that the hearing now move on expeditiously when the Member is of the opinion that despite the delay, he is willing to wait to be given an opportunity to have a hearing wherein there is face-to-face cross-examination of the witnesses that the College intends to call.

F. Advice of Independent Legal Counsel

20Independent Legal Counsel advised the Panel that the primary rule about objecting to an electronic hearing is Rule 8 of the Rules. This rule, at the time of the motion, stated that the Panel may order that some or all of a hearing be held electronically, unless it is satisfied that holding an electronic hearing rather than an oral hearing is likely to cause a party significant prejudice. This procedural rule mirrors the provisions of section 5.2 of the SPPA. While at the time of the motion, the COVID-19 pandemic prevented courts and tribunals from sitting in person, the Panel still had to apply the significant prejudice test and the Member had the burden of demonstrating significant prejudice. Independent Legal Counsel advised the Panel to consider whether the threshold of this test has been met by the Member. In addition to the leading case of Arconti v. Smith, 2020 ONSC 2782 (“Arconti”), Independent Legal Counsel advised the Panel to consider a ruling (issued during the COVID-19 pandemic) from Ontario’s Divisional Court in Association of Professional Engineers v. Rew, 2020 ONSC 2589 (“Rew”). The respondent in Rew argued for an adjournment because he was not consenting to a hearing by videoconference. As in the present case, the stakes for the client in Rew were important, dealing with matters of professional discipline. Nevertheless, the court ruled that “the relative importance of the case has nothing to do with whether the case can be heard fairly and efficiently by videoconference” (Rew, at para. 9). The court commented that the electronic format of a hearing alone does not create unfairness. The moving party must bring evidence to show the likelihood of significant prejudice to the moving party.

21Independent Legal Counsel also advised that the Ontario Superior Court decision in Davies v. The Corporation of the Municipality of Clarington, 2015 ONSC 7353 (“Davies”) is instructive on the issue of assessing credibility when proceeding by videoconference. In Davies, the court specifically rejected the submission that hearing and viewing testimony by way of videoconference would negatively affect a court’s ability to make findings about the credibility of a witness (Davies, at para. 35). Simply suggesting that it would be more difficult to assess a witness’s credibility is not in and of itself a demonstration that significant prejudice is likely to occur. The Member must show some actual likelihood of significant prejudice. If the Panel makes the determination that the likelihood of significant prejudice has been shown by the Member, the Panel has the discretion to order an adjournment pursuant to Rule 14.

G. Decision on Motion

22The Panel denied the Member’s adjournment motion and ordered the hearing to continue electronically. The Panel found that it would not cause the Member significant prejudice to proceed with an electronic hearing for the following reasons.

23The Panel disagreed with the Member’s general assertion that witness demeanour cannot be properly assessed from video testimony to assist with credibility findings. First, when it comes to observing physical demeanour (such as facial expressions and other body language), the Panel is of the view that looking at a witness directly on screen and up close as the witness is testifying is likely to be of assistance to the Panel rather than seeing a witness in profile and at a distance, as would occur in a physical hearing room. Second, a witness’s demeanour is but one factor among many that a trier of fact needs to consider when assessing credibility and arguably not a highly reliable one because demeanour is easily misinterpreted. Paraphrasing Justice Rutherford quoted in Davies,³ a witness’ nervous body language that comes from the pressure of testifying in a public courtroom can easily be mistaken for uncertainty or insincerity, while an assertive posture rehearsed for persuasion can easily be mistaken for candour and knowledge. Indeed, for witnesses who find a public courtroom stressful, as many do, testifying by videoconference may help them “perform more capably” by reducing environmental stressors, which may, in turn, diminish the risk of misinterpreting or placing too great an emphasis on demeanour overall.

24In so far as interpreting demeanour assists a trier of fact in making a credibility finding – the trier of fact may in fact “see more” on the video screen rather than less. When it comes to proper conclusions about credibility, the Panel is nevertheless mindful not to overstate the significance of demeanour as compared to other credibility factors. As articulated in Davies, how a witness appears during their testimony is “rarely determinative of credibility” and therefore a trier of fact relying solely on observations of demeanour to draw conclusions about credibility is likely to make an error (Davies at para. 30). To assess witness credibility overall, “how the substance of a witness’ evidence coincides logically” with the proven or deduced facts (Davies at para. 24) is a far more important factor in assessing credibility than how a witness appears.

25The Panel therefore finds that whether by videoconference or in person, the substance of the evidence that would be heard in this hearing would be the same. During the electronic hearing process, as in the in-person hearing room, both parties will have the same opportunities to present relevant evidence, question all the witnesses being called, and challenge the other side’s case. An electronic hearing format will not alter this procedure or the content of the evidence of each witness that will be seen, heard and evaluated by the Panel.

26Based on the parties’ submissions, the pivotal credibility assessments that the Panel must make in order to determine the events that occurred in this case relate primarily to the Member’s video-recorded statements and testimony. In so far as the Member’s demeanour could become a relevant factor in the Panel’s credibility findings, the Panel will already be observing the Member’s testimony by way of video for the College’s portion of evidence. For both parties to present the remainder of their evidence in the same format creates consistency, which also weighs in favour of an electronic hearing.

27Lastly, the parties have indicated that the evidence in this case will involve the testimony of three witnesses and that relatively few documents will be tendered. From a technical and logistical perspective, presenting and entering evidence electronically would also be relatively straightforward in this case.

28Having heard no evidence about the likelihood of any actual unfairness to the Member by proceeding with this hearing electronically, as required by the test under Rule 8, the Panel therefore denied the member’s adjournment motion and proceeded to the hearing on the merits electronically (via Zoom).

H. OVERVIEW

29This is a case about an inappropriate relationship that allegedly resulted in professional boundary violations between a Vice-Principal (the Member) and a student (Student 1). The student attended [XXX]school where the Member was Vice-Principal between 20[XXX]and 20[XXX]. The Member developed a personal relationship with the student and his mother that involved regular social visits to the student’s home, sleepovers at the student’s or the Member’s home, a camping trip that was not school-sanctioned, as well as the consumption of alcohol and use of marijuana by the Member with the student. On July 10, 20[XXX], while the Member was staying over at the student’s home, it was alleged that the Member lay and slept on the student’s bed. Further allegations related to this incident were the subject of criminal charges about which the Member was acquitted at trial.

30College Counsel alleged that the evidence, primarily the Member’s prior admissions during the criminal investigation, demonstrate that the Member committed professional misconduct. The Member denied all allegations of professional misconduct. The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities, and if so, whether the Member’s conduct gives rise to a finding of professional misconduct.

31For the reasons that follow, the Panel found that the Member engaged in professional misconduct in relation to Student 1 in that he contravened subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. While the Notice of Hearing (Exhibit 1) contains numerous allegations of boundary violations related to other students, the College only led evidence in relation to particulars about Student 1 (particulars at para. 4 below) and did not adduce any evidence in relation to particulars about Students 2 to 8 (particulars at paras. 5 to 16 below).

I. THE ALLEGATIONS

32The allegations against the Member in the Notice of Hearing dated February 1, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Paul Joseph Paterson 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);⁵

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);⁶

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;⁷

(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, contrary to Ontario Regulation 437/97, subsection 1(14);

(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); and

(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. Paul Joseph Paterson is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the York Catholic District School Board (the “Board”) at [XXX]School (the “School”), in [XXX], Ontario.

3. During the 20[XXX] – 20[XXX] academic years, the Member was the Vice-Principal at the School.

4. Between September 1, 20[XXX] and July 26, 20[XXX], the Member had an inappropriate personal relationship with Student 1, a male student at the School, including, but not limited to:

(a) Meeting with Student 1 after school hours and/or on weekends to have coffee;

(b) Smoking marijuana and/or drinking alcohol with Student 1;

(c) Going on one or more overnight camping trips and sleeping in the same tent with Student 1;

(d) Allowing Student 1 to sleep over at his house;

(e) Purchasing alcohol for Student 1;

(f) Exchanging text messages with Student 1;

(g) Closing the door to his office and being alone with Student 1.

5. Between March 1, 2016 and March 31, 2016, the Member had inappropriate physical contact with Student 2, a male student at the School, including but not limited to:

(a) Patting down Student 2 on the outside of his clothing and on top of Student 2’s pants’ pockets looking for drugs, money or a stolen credit card;

(b) Lifting up Student 2’s shirt.

6. Between September 1, 2014 and March 23, 2016, the Member had inappropriate physical contact with Student 3, a male student at the School, including but not limited to conducting ‘check-ins’ with Student 3, consisting of directing Student 3 to strip down to his underwear and then patting down Student 3 searching for drugs.

7. Between January 1, 2016 and March 23, 2016, the Member had inappropriate physical contact with Student 4, a male student at the School, including but not limited to conducting ‘check-ins’ with Student 4, consisting of directing Student 4 to strip down to his underwear and then patting down Student 4, searching for drugs.

8. Between January 1, 2016 and March 23, 2016, the Member had an inappropriate personal relationship with Student 4 including but not limited to:

(a) Cutting Student 4’s hair at school;

(b) Allowing Student 4 to spend the night at his home.

9. Between September 1, 2014 and March 23, 2016, the Member had an inappropriate personal relationship with Student 5, a male student at the School, including but not limited to:

(a) Cutting Student 5’s hair at school;

(b) Taking Student 5 out for dinner;

(c) Smoking cigarettes with Student 5;

(d) Giving Student 5 rides home from school;

(e) Asking Student 5 if Student 5 had white bumps on his penis and asking Student 5 if he could check Student 5’s penis.

10. Between September 1, 2014 and March 23, 2016, the Member had inappropriate physical contact with Student 5, including but not limited to conducting weekly ‘check-ins’ with Student 5, consisting of directing Student 5 to strip down to his underwear and then patting down Student 5, searching for drugs.

11. Between September 1, 2014 and March 23, 2016, the Member had an inappropriate personal relationship with Student 6, a male student at the School, including but not limited to:

(a) Cutting Student 6’s hair at school;

(b) Giving Student 6 rides in his car;

(c) Allowing Student 6 to sleep over at his house;

(d) Telling Student 6 while he was sleeping at the Member’s house “if you masturbate, don’t forget to clean up”;

(e) Telling Student 6 he had a friend who was a police officer and if Student 6 allowed the Member to search him weekly, the Member could help facilitate having Student 6’s criminal record expunged.

12. Between September 1, 2014 and March 23, 2016, the Member had inappropriate physical contact with Student 6, including but not limited to conducting ‘check-ins’ with Student 6, consisting of directing Student 6 to strip down to his underwear and then patting down Student 6, searching for drugs.

13. Between September 1, 2015 and March 23, 2016, the Member had an inappropriate personal relationship with Student 7, a male student at the School, including but not limited to:

(a) Cutting Student 7’s hair at school;

(b) Telling Student 7 that he was a specialist in sexually transmitted diseases and asking Student 7 if he could look at Student 7 to ensure that Student 7 did not have any diseases.

14. Between September 1, 2015 and March 23, 2016, the Member had inappropriate physical contact with Student 7, including but not limited to:

(a) Conducting ‘check-ins’ with Student 7, consisting of directing Student 7 to strip down to his underwear and then patting down Student 7, searching for drugs;

(b) Attempting to touch Student 7’s buttocks.

15. Between September 1, 2015 and March 23, 2016, the Member had an inappropriate personal relationship with Student 8, a male student at the School, including but not limited to:

(a) Cutting Student 8’s hair at school;

(b) Giving Student 8 a ride in his car.

16. Between September 1, 2015 and March 23, 2016, the Member had inappropriate physical contact with Student 8, including but not limited to conducting weekly ‘check-ins’ with Student 8, consisting of directing Student 8 to strip off his pants, including his underwear and searching Student 8 for drugs.

J. THE MEMBER’S PLEA

33The Member denied the allegations set out in the Notice of Hearing dated February 1, 2019.

K. The EVIDENCE

34The Panel heard the testimony of three witnesses in total: two for the College and the Member who testified on his own behalf. College Counsel also played portions of a prior statement made by the Member to a police detective videorecorded during a criminal investigation in relation to allegations brought by Student 1 against the Member. The College called Detective Constable Deborah Gilmour (“Detective Gilmour”), who testified regarding her videorecorded interview with the Member on March 22, 2016. The College also called Superintendent Jennifer Sarna (“Superintendent Sarna”), who was the Member’s Principal and direct supervisor during the 20[XXX] to 20[XXX]and 20[XXX] to 20[XXX]school years and who testified about the Member’s responsibilities as a Vice-Principal in the School. Member’s Counsel called the Member to testify in his own defense. A summary of the evidence is set out below and relevant portions will be set out in greater detail, as needed, in the Panel’s reasons for decision.

(1) Admissibility of Video and Transcript Evidence

35On agreement of the parties, relevant portions of the interview of the Member conducted by Detective Gilmour on March 22, 2016, were played for the Panel and a redacted transcript of the Member’s statement was entered into evidence (Exhibit 9). The parties redacted portions of the videorecorded interview that were beyond the scope of the allegations in the Notice of Hearing.

(2) Scope of Evidence and the Notice of Hearing

36Member’s Counsel asked College Counsel to clarify the scope of the allegations that the Panel was to consider. In particular, to what extent College Counsel intended to lead evidence relating to the July 20[XXX] incident in light of the “including but not limited to” language at paragraph 4 of the enumerated particulars in the Notice of Hearing.

37College Counsel replied that while the College is not alleging any sexual impropriety or sexual misconduct by the Member with respect to Student 1, what is being alleged in the Notice of Hearing is an inappropriate personal relationship with Student 1, including but not limited to a list of specific instances of that inappropriate personal relationship. According to College Counsel, the conduct under consideration in the Notice of Hearing does extend to proving other boundary violations between a Vice-Principal and a student. Evidence of every interaction between the Member and Student 1 where a line was crossed by the Member, including the incident of getting onto a bed with a student, is relevant and it does fit and add to the particulars that make out boundary violations that go to establishing that the Member engaged in an inappropriate personal relationship with Student 1.

38College Counsel indicated that the Member was not being caught off guard and knew the case he had to meet in advance of this hearing. In a letter dated October 7, 2021, every particular that the College intended to pursue was enumerated to the Member. College Counsel then proceeded to read that correspondence to the Panel and the Member confirmed that he received College Counsel’s letter and acknowledged that the particulars correspond to the Notice of Hearing, with the exception that the College (in its October 7, 2021 letter, but not in the Notice of Hearing) was also alleging a romantic involvement between the Member and Student 1’s mother. Nevertheless, the Member did not object to the list of particulars read out by College Counsel, including that the Member allegedly:

• met with Student 1 after school and on weekends;

• attended regularly at Student 1’s home, took Student 1 out for coffee;

• attended a movie with Student 1;

• struck a close friendship with Student 1’s mother while continuing to perform supervisory role as Vice Principal to Student 1;

• had a romantic involvement with Student 1’s mother while continuing to perform supervisory role as Vice Principal to Student 1;

• stayed over at Student 1’s home overnight on multiple occasions;

• allowed Student 1 to stay overnight at his residence on two occasions;

• drank alcohol together with Student 1;

• smoked marijuana together with Student 1;

• took student on unaccompanied, non school sanctioned camping trip;

• slept alone in same tent as Student 1;

• used inappropriate language when speaking to student;

• was aware of drug taking by Student 1 and failed to inform Student 1’s parents; and

• slept in same bed as Student 1.

39Given that the College intended to address issues involving the July 10, 20[XXX] incident within the scope of this hearing, Independent Legal Counsel gave advice to the Panel that asking witnesses detailed questions about the Member being on a bed with Student 1 as well as questions about alcohol consumption during the July 10, 20[XXX] incident were relevant to establishing an inappropriate personal relationship between the Member and Student 1, and that the parties were therefore within their rights to examine and cross examine the witnesses on those issues as well. The Panel accepted Independent Legal Counsel’s advice and agreed that witnesses could be examined and cross-examined on those issues.

(3) The College’s Evidence

(a) Detective Gilmour’s Testimony

40Detective Gilmour was a police detective within the York Regional Police, Special Victims Unit from June 2013 until December 2017. In this capacity, she was responsible for investigating crimes against children. Detective Gilmour testified that she became involved in this case on March 16, 2016, when Student 1 filed a complaint to police about being assaulted by his Vice-Principal in July 20[XXX] when he was [XXX]years old. Detective Gilmour arrested the Member on March 22, 2016, on charges of sexual assault and sexual exploitation at [XXX] School, in [XXX], Ontario. Detective Gilmour interviewed the Member at the police station on the day of his arrest. During Detective Gilmour’s testimony, College Counsel played the videotape of Detective Gilmour’s interview with the Member during which the Member described his involvement with Student 1 outside of school and responded to Detective Gilmour’s questions about the allegations that Student 1 had made to the police. The contents of the Member’s statements will be addressed in greater detail in the Panel’s reasons for decision.

41Detective Gilmour testified that Student 1 filed the complaint to police specifically in relation to an incident that occurred at his home in July 20[XXX], less than a month[XXX] after Student 1 had graduated from [XXX]school. Student 1 told Detective Gilmour that he had invited the Member to his home on the day that his parents were departing for a trip to [XXX] . The Member shared a meal with Student 1’s family before the parents headed to the airport, leaving behind the Member, Student 1 and his grandfather at the family home. Earlier in the day, the Member and Student 1 had dropped off Student 1’s [XXX] brother at a friend’s house and then stopped at a liquor store to purchase alcohol before returning to Student 1’s home. During the evening, Student 1 and the Member were in his bedroom listening to music. Student 1 said that he had taken a prescription pill earlier in the day. In the evening, he and the Member smoked approximately two marijuana joints (possibly using a bong of some sort) while taking a walk outside Student 1’s house.

42Back at the home, Student 1 consumed most of the contents of a 750 ml bottle of Jägermeister purchased earlier that day, and he and the Member also drank some beer. Detective Gilmour recalled that Student 1 told her that when he announced that he was going to bed, the Member asked if he could stay in the room with him. The Member climbed onto Student 1’s bed but at some point later in the night, Student 1 got off the bed and went to sleep in another room. Detective Gilmour also testified that Student 1 reported to her that, following that evening, he had distanced himself from the Member. From the time that Student 1 was in Grade [XXX]until the alleged offence, Student 1 would communicate with the Member by text and meet with the Member to “hang out”. He told Detective Gilmour that he would smoke weed and consume alcohol at his and the Member’s house and that that he stayed overnight at the Member’s home three times.

(b) The Member’s Videorecorded Statement to Detective Gilmour on March 22, 2016

43The Member indicated that he met Student 1 while he was in Grade [XXX]. Thereafter, the Member developed a personal friendship with Student 1’s mother, which involved some [XXX]intimacy. During the period of time that the Member was a Vice-Principal to Student 1, he stopped by Student 1’s house on a regular basis. The Member told Detective Gilmour that he became a “father-figure” to Student 1. The Member gave Student 1 his personal cell phone number, which they used to speak to one another and to text each other. He drove him home from school on three occasions, would go for coffee with Student 1 and then stayed at the student’s house to socialize. The Member also told Detective Gilmour that the mother had asked him to take Student 1 camping. He agreed and in the summer of 20[XXX] he and the student went on a two-night camping trip together where the Member slept alone with the student in a tent. The Member told Detective Gilmour that during the overnight camping trip, he drank alcohol with Student 1 and smoked marijuana with him.

44The Member eventually stayed overnight at Student 1’s home at least twice. The Member also allowed Student 1 to stay overnight at his home on two occasions, which he said he did as a favour to Student 1’s mother. The Member told Detective Gilmour that the mother had asked the Member to stay the night to keep an eye on her sons when she and her husband were going on vacation to [XXX] in December 20[XXX] and on the night that the parents departed for a vacation to [XXX] on July 10, 20[XXX]. While the Member stayed over at Student 1’s home on July 10, 20[XXX], the student became extremely intoxicated under the Member’s watch by drinking almost an entire bottle of liquor, while the Member indicated that he himself had a shot or two and some beer. Earlier in the day, the Member had stopped at the liquor store with Student 1 to purchase that alcohol. Later that night, the Member said that he passed out next to the student on his bed after helping him record some [XXX].

(c) Superintendant Sarna’s Testimony

45Jennifer Marie Sarna was Principal at the School from January 20[XXX] until April 2017, when she moved on to a superintendent role with a portfolio focussed on school safety. At the time of her testimony, Superintendent Sarna had been an educator for 30 years.

46Superintendent Sarna testified that the Member joined the School as a Vice-Principal in January 20[XXX] and started at the same time that she did in her (then) role as Principal. The Member reported to Superintendent Sarna directly. To her recollection, her professional relationship with the Member was congenial and defined by a great deal of mutual respect. She testified that as part of their ongoing activities, she and the three Vice-Principals at the School would meet weekly to share and discuss situations that arose in the School so that she (in her role as Principal) was made aware of and involved in decision-making related to students. The Member was also expected to regularly confer and consult on best practices with his colleagues. Given the large number of students and teachers at the School, the Member and the other two Vice-Principals on staff were the designated “hands and eyes” of the Principal.

47Out of a cohort of roughly 1,600 students, the Member was alphabetically assigned to oversee more than 500 students each academic year between 20[XXX]-20[XXX]. He would have personally interacted with only a fraction of those students, however. Students would typically be referred to a Vice-Principal by teachers or guidance counsellors if they were deemed “at-risk” or for disciplinary reasons. Students would be identified as “at-risk” by their teachers if they were struggling to navigate the school system academically or struggling with day-to-day requirements, like attendance, or if students presented with personal, social or emotional challenges that needed to be addressed at school, such as drug use. The Member’s role was to support “at-risk” students to return to a path of achievement and success. Students were also referred to the Member to implement progressive disciplinary measures that required a Vice-Principal’s oversight. As Vice-Principals are often the ones who are sitting and listening to students, Superintendent Sarna testified that students often form a strong connection with them. However, as part of their dialogue at School, the Vice-Principals were strongly discouraged from taking on a counselling role with students. First and foremost because educators do not have the necessary training for that kind of work and secondly, if they were to take on too much responsibility with one student, they would take away from time to meet with other students in need. Superintendent Sarna testified that she would not have permitted or supported the Member in counselling a student or extending support to a student offsite or outside school hours, such as by meeting with a student at coffee shops or visiting at a student’s home.

48Superintendent Sarna testified that, when a student was called in to speak to a Vice-Principal, there was corresponding communication that went out to parents and an attempt to help find and establish supports for students to get back on track. The Member would have been aware that students who fall into the “at-risk” portfolio could be referred to a behavioural counsellor to address issues such as drug use, depression, or inconsistent relationships with family members, or, if a student is profiled with greater needs, a student could also be referred to a Board psychologist. These types of supports would have been offered with parental consent. Superintendent Sarna testified that the trigger for Student 1 being referred to see the Member occurred after his teachers submitted conduct reports about poor academic performance and poor attendance.

49During cross-examination, Member’s Counsel put to Superintendent Sarna that Student 1’s first meeting with the Member occurred during second semester, when Student 1 attended the Member’s office in a panicked state, possibly related to marijuana use, and that the Member called Student 1’s mother to pick her son up to take him to the [XXX]. Superintendent Sarna replied that she may have heard about this event from the attendance secretary who recorded the comings and goings of students, but that she herself did not have any recollection of that incident or what the Member’s response was to the student. Superintendent Sarna confirmed that she had not seen any files that the Member may have kept regarding his interactions with Student 1, she was not aware of any supports that the Member may have sought out on Student 1’s behalf, nor did she speak to Student 1’s parents about the difficulties that he was experiencing. She testified that during a dynamic crisis situation involving a student, a Vice-Principal would be expected to consult with an on-site supervisor to provide support. They could also rely on colleagues and professional support available across the education system.

50Superintendent Sarna acknowledged that a Vice-Principal’s duties are not specifically laid out in a Board policy or in written guidelines. There is no Board document that defines or restrains a teacher from having an association with a student outside of school hours. However, it was not recommended for teachers and administrators to associate with students outside school time and teachers’ unions would routinely advise their membership against it. When it comes to a prior personal connection or current friendship with a parent, there is no Board policy that explicitly says that it is unacceptable to have a friendship with a parent, but if such a relationship is known to the administration, a Vice-Principal would have been precluded from working with that parent’s child to avoid any conflict of interest. For a Vice-Principal to support a child of a friend would go against best practices because it leaves open the potential for preferential treatment or accommodations to a student or the perception of preferential treatment from members of the school community.

51Superintendent Sarna testified that one of the guiding policies for all individuals working within the Board is Policy 218: Code of Conduct (Exhibit 6), which dictates the expected behaviours of employees to promote and enhance safety, including a prohibition on criminal-type behaviours such as giving alcohol to minors. The Member would also have been familiar with Policy 412: Progressive Discipline of Employees (Exhibit 7), which speaks to limits regarding the association that teachers can have with students once they graduate from [XXX]school or are no longer a student of the Board. This policy was approved by the Board on January 30, 2018.⁸ Section 3.7 mandates that all employees of the Board are expected to “maintain professional and appropriate relationships with students”. Section 3.7.3 requires that professional and appropriate boundaries be respected for a minimum of 24 months after the student graduates. In the 2012 version of the policy, which would have been in effect at the relevant time, members had to maintain professional boundaries for at least 18 months following graduation.

52Superintendent Sarna explained that the expectation that teachers maintain professional and appropriate relationships was not limited to prohibiting sexual interactions with students but related to professional and appropriate boundaries more broadly. She confirmed that no disciplinary actions were taken against the Member under that policy. Prior to the police’s involvement and unfolding investigation, she testified that she had no knowledge about the Member’s interactions with Student 1 outside of school or about the incidents that formed the basis of Student 1’s complaint to police.

(4) The Member’s Evidence

(a) The Member’s Testimony

53The Member testified on his own behalf at the hearing.

54The Member told the Panel that he met Student 1 in his office at School in the Spring of 20[XXX]. Student 1 was escorted to the Member’s office by a friend because Student 1 was experiencing an emotional crisis. The Member testified that he called Student 1’s mother to inform her that her son was in distress. She came to the School to pick him up and took him to the [XXX]. Following that meeting, the Member learned through a phone conversation with Student 1’s mother that Student 1 had been [XXX] and that marijuana use may have contributed to Student 1’s distress that day. The Member also testified that during the meeting with Student 1 in his office, he had provided Student 1 with a referral to the School’s itinerant [XXX]and that Student 1 subsequently visited with the [XXX]twice.

55The Member testified that he continued to exchange calls with Student 1’s mother, and all subsequent contact with Student 1 (and with his mother) took place outside the School. A few weeks after Student 1’s [XXX], Student 1’s mother invited the Member to their home to have dinner as a “thank you” for the Member’s intervention with Student 1. The Member attended the dinner at Student 1’s home and continued to socialize with the family for two and a half years, until shortly after Student 1 graduated from [XXX]school in June 20[XXX].

56The Member insisted throughout his testimony that that he was not friends with Student 1 and that he was only friends with Student 1’s mother. He testified that he stayed at Student 1’s home on July 10, 20[XXX]as a favour to Student 1’s mother. He was there to assist as an adult supervisor to make sure that Student 1 did not have friends over on the first night that the parents were away, though he only stayed one night before leaving on vacation himself. He insisted that it was not a “boy’s night” or two friends partying. Under the Member’s watch, Student 1 consumed drugs and an excessive amount of alcohol, and he drank with the Member until they both passed out. In cross-examination, College Counsel put to the Member that his behaviour looked more like friends partying than an adult fulfilling a supervisory role, but the Member maintained that he was there to keep an eye on Student 1.

57The Member revised his prior statement to Detective Gilmour about drinking and smoking marijuana with Student 1 while camping. He testified that he only took “one puff” of Student 1’s joint. On the question of going for coffee with Student 1, the Member maintained that he only went to coffee with Student 1 after the student graduated, and also to see a movie, but he maintained that these activities had nothing to do with his role at the School. He also insisted that he only learned of Student 1’s prescription pill and cocaine use once Student 1 graduated. He denied that he ever went into the LCBO or knew of Student 1’s intention to purchase alcohol on July 10, 20[XXX].

58When asked by College Counsel what the Member did to discourage underage drinking, he testified that he was not Student 1’s parent and that it was not his position to discipline or lecture him about alcohol. The Member said: “I did not make a connection to this being a school issue” as he was neither acting as a Vice-Principal at that time nor thinking of himself in that role. Though the Member was not Student 1’s parent he testified that he nevertheless considered himself to be a “role model” for Student 1 as “someone who can listen [to Student 1’s problems] and who is successful”.

L. SUBMISSIONS OF COLLEGE COUNSEL ON FINDING

59College Counsel reviewed the relevant evidence with the Panel and submitted that the evidence presented to the Panel proves, on a balance of probabilities, each of the allegations set out in the Notice of Hearing, other than those that the Panel had withdrawn at the College’s request. The College alleges that the Member engaged in an inappropriate personal relationship with Student 1. The Member made admissions to the police about having failed to maintain professional boundaries with the student and confirmed many of those boundary violations in his evidence to the Panel.

60The College urged the Panel to place the most weight on the Member’s video statement taken by Detective Gilmour on March 22, 2016, regarding criminal charges stemming from a complaint brought against the Member by Student 1, which provides the Panel with the Member’s clear admissions to the allegations (Exhibit 9). College Counsel argued that the statement given to police should be preferred evidence to the Member’s more recent testimony during this discipline hearing, given that the Member is testifying [XXX]years after the fact, and he has had that time to think about how to characterize and reframe his statements in the context of defending himself.

61College Counsel submitted that a Vice-Principal or any member of the College does not get to “take their teacher hat off” each time they are technically off duty. On the contrary, any interaction that a member has with a student in a personal capacity outside of the school context is even more closely scrutinized by the College. The Act and the associated legislation and regulations do not apply to members only when school is in session. Likewise, members do not get to turn their professional obligations on and off as it suits them or declare themselves as being only a friend to a student (as compared to a teacher or Vice-Principal) when it is convenient. As a school administrator, the Member ought to have known that members’ duties extend beyond school hours and grounds.

62According to College Counsel, either the Member intentionally tried to mislead this Panel when he repeatedly stated that he saw no problem with having a personal relationship with the student and his family, given that he was not acting in his capacity as a Vice-Principal at the time; or, after ten years of teaching and five-and-a-half years of being an administrator, he had no idea that members are to always maintain appropriate boundaries with students, including in their off-duty hours. The College submitted that on either interpretation, the Member is guilty of professional misconduct for the serious boundary violations he committed, though the second interpretation is highly implausible. The Member could not reasonably have believed that it was appropriate for him to participate in alcohol and illegal drug use with a minor, especially knowing that the student was struggling with [XXX].

63Previous decisions of the Discipline Committee have determined that having an inappropriate personal relationship with recently graduated students constitutes a breach of trust, and the fact of a student having graduated does not diminish the wrongdoing.⁹ College Counsel likewise submitted that it makes no difference whether Student 1 had graduated when the Member slept over at his house and drank with him until they ended up next to each other on the student’s bed. The Member continued to occupy a position of trust and authority with the student on July 10, 20[XXX].

64Similarly, the relationship with Student 1’s mother arose as a result of the Member being her son’s Vice-Principal. The Member’s first point of contact with Student 1’s mother occurred when Student 1 was in a state of crisis requiring [XXX] for a [XXX]. Shortly thereafter, he accepted a dinner invitation and became a regular social visitor at the family’s home. Although the student’s mother and the Member became friends, the Member remained the student’s Vice-Principal, and he took advantage of the unique position of trust that he held in that role.

65College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing, apart from the withdrawn allegations or about the students for whom no evidence was tendered.

M. SUBMISSIONS OF MEMBER’S COUNSEL ON FINDING

66Member’s Counsel focussed his submissions on dispelling the narrative that he suggested was fed to Detective Gilmour by Student 1 and repeated in this hearing.

67Member’s Counsel refuted that the Member was Student 1’s mentor or confidante. During a [XXX]-year period, Student 1 came to see the Member only once in Grade [XXX], and at no time afterward. From the middle of Grade [XXX]to Grade [XXX], Student 1 was working as many as two jobs after school so he would not have been very available for socializing with the Member. As time passed there was not a significant connection between the Member and Student 1. Student 1 did what he wanted, and he did not listen to his own mother. He smoked and drank at home and came and went when he wanted. It is therefore not reasonable to suggest that there was mentorship or an ongoing relationship of trust between Student 1 and the Member. Neither was the Member entrusted with any parental authority over Student 1. The parents did not concede it and did not expect the Member to intercede and become the person to provide Student 1 with advice and direction. The Member had no right to tell Student 1 what to do and when to do it. Similarly, he was also not given the authority to supervise Student 1 on July 10, 20[XXX], when he stayed over at the family home. The Member was there as a visitor. In R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171 (“Audet”), the Supreme Court of Canada recognized that the relationship of trust and authority does not exist in every situation and to make that determination requires that the Panel look at all the circumstances before drawing the conclusion about the nature of the Member’s relationship with Student 1 (Audet, at paras. 38 and 43).

68On two occasions, the Member volunteered to help his friend, Student 1’s mother, by letting Student 1 stay over at his house, where nothing inappropriate took place. On a third occasion, Student 1’s mother asked the Member for help and he agreed to pitch in by taking Student 1 camping. There is nothing in the fact of camping itself that is professional misconduct. There are no rules or regulations that say you shall not do that, so the Member exercised his judgment. Moreover, nothing the Member did was done in secret or without permission. The Member even checked in with Student 1’s mother before the camping trip about whether he could bring beer, in keeping with the College’s Professional Advisory on Boundary Violations’ recommendation to contact and receive the approval of parents in order to avoid a situation that may be questioned or deemed a boundary violation. The Member’s mistake was that he took a drag of a joint during a camping trip, which he admitted was in poor judgment; but, apart from this mistake, there was nothing that he did that was inappropriate and/or that amounted to professional misconduct.

69Member’s Counsel refuted the College’s position that all the Member’s interactions with Student 1 and his family occurred in his role as Vice-Principal. From the Member’s perspective, his association with the family did not constitute a school-related matter. It occurred on the Member’s own personal time and not through his position as Vice-Principal. Member’s Counsel argued that it cannot be the case that you do not have a personal life because you are an administrator. Member’s Counsel reminded the Panel that in Ross v. New Brunswick School District No.15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825 (“Ross”), Justice La Forest stated that off the job conduct may amount to misconduct in a situation where “…there may be controversy within the school community which disrupts the proper carrying on of the educational system.” Even if the Panel were to assume this proposition, Member’s Counsel contended that the school system has not been disrupted or adversely impacted by the Member’s conduct (Ross, at para. 44). He questioned how far the College could go to suggest that the school system has been affected.

70And, even if the Member were found to be acting in his position as Vice-Principal on some occasions, there are certain issues of professional judgment raised in the particulars of the Notice of Hearing that are not related to professional misconduct as defined in the Act, the by-laws of the College or in any regulation. Member’s Counsel cited the enumerated particular alleging that the Member kept the door closed while meeting with Student 1. While it may be advisable that a teacher avoid putting themselves in a position that may result in a problem for a teacher, it is not made clear in any rule that meeting a student after school to have coffee, especially once they are no longer a student, is inappropriate. Looking at the professional advisory regarding media use, Member’s Counsel also submitted that sending text messages that contain no evidence of inappropriate communication between the Member and the student is in and of itself not a breach of any professional responsibility.

71Member’s Counsel pointed out as an erroneous assumption that certain acts alleged in the Notice of Hearing constitute professional misconduct because of certain advisories that caution teachers about things that they should be careful about. These are not the rules that the College can rely on to ascertain a breach of the professional misconduct regulation.

N. DECISION ON FINDING

(1) Onus and Standard of Proof

72The 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. This means that the College must prove first, that it is more likely than not that the Member acted as alleged in the Notice of Hearing and second, that any such behaviour constitutes professional misconduct.

(2) Decision

73College Counsel submitted that the College only presented evidence with respect to the allegations relating to Student 1, which were particularized at paragraph 4(a)-(g) of the Notice of Hearing. No evidence was led with respect to Students 2 to 8 (i.e., paragraphs 5-16 of the Notice of Hearing). Further, Counsel for the College requested the withdrawal of the allegations of professional misconduct outlined at paragraphs (a), (b), (c) and (d), namely that the Member contravened subsections 1(5), 1(7.1), 1(7.2), and 1(7.3) of Ontario Regulation 437/97 and/or that the Member engaged in sexual abuse of a student as defined in section 1 of the Act. College Counsel sought to withdraw the subsection 1(5) allegation because proceeding under subsection 1(5) and 1(14) would be duplicative. With respect to the 1(7.1) allegation, College Counsel submitted that its withdrawal was appropriate because none of the evidence in relation to Student 1 related to physical abuse. Similarly, the College sought to withdraw the 1(7.2) allegation because it did not call evidence relating to psychological or emotional abuse. Finally, College Counsel requested the withdrawal of the subsection 1(7.3) sexual abuse allegation and the allegation of sexual abuse under section 1 of the Act, because the College decided not to pursue these heads of misconduct. After Student 1 testified at the criminal trial, he was found not to be a reliable witness given that he was under the influence of drugs and alcohol on the night of July 10, 20[XXX]. With the criminal court having made this credibility finding prior to these disciplinary proceedings, there was no reasonable prospect of obtaining a finding of professional misconduct on the sexual abuse allegations. The Panel granted these requests.

74Having considered the evidence, onus and standard of proof, and the submissions of the parties, for the reasons that follow, the Panel found that the Member engaged in professional misconduct in that he contravened subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel did not find that the College has met its burden of proving the subsection 1(11) allegation, relating to the Member’s alleged failure to adequately supervise a person under his professional supervision.

O. REASONS FOR DECISION ON FINDING

75The Panel has carefully reviewed the evidence and submissions presented in this matter. The Panel had the benefit of viewing a video statement provided by the Member to the police in March 2016, hearing evidence from Detective Gilmour who interviewed the Member for the video statement and from Superintendent Sarna who was the Member’s Principal and direct supervisor, and from the Member himself. 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.

P. CREDIBILITY

(1) Detective Gilmour

76The Panel found Detective Gilmour to be a credible witness. She was forthright in her answers, had a good recollection of the events and did not attempt to go beyond her memory by speculating on statements that were put to her by counsel or filling in her own details about what other witnesses may have stated or not stated during the criminal trial (Student 1 or Student 1’s mother).

77During cross examination, Member’s Counsel asked Detective Gilmour to remember details about Student 1’s statement, and in particular about the timing and specific number of visits that the Member made to Student 1’s home, the timing and number of coffee outings, the number of times that Student 1’s mother would have asked him to come over or drive Student 1 from school, and when Student 1 had started to use drugs. The witness could not answer the detailed questions that Member’s Counsel put to her from memory. She indicated that to provide more detailed answers about the Member’s relationship with Student 1 outside of school, she would have needed to have reviewed the transcript of Student 1’s interview from six years ago. While that interview was part of Crown disclosure in the criminal trial, it was not available to the College or to Detective Gilmour, and Member’s Counsel did not provide the witness with access to it.

78The Panel did not draw an adverse inference about the detective’s testimony in this regard. In the Panel’s view, given the scope of this hearing and the fact that Student 1 was not being called to testify, the witness’s inability to provide detailed answers about Student 1’s prior statements did not call into question her credibility. The detective’s testimony was consistent with the evidence provided by the Member in his statement. The Panel found the details that the witness remembered regarding her investigation of the Member, with the assistance of a summary of monitor notes from her interview with Student 1, to be clear, logical and convincing. The Panel therefore considered the detective’s evidence to be reliable and gave it considerable weight.

(2) Superintendent Sarna

79Superintendent Sarna did not have any direct knowledge about the Member’s involvement with Student 1 at school or outside of school. She provided factual evidence regarding Board policies and professional expectations of the role of a Vice-Principal and gave responses about what conduct she would have authorized or disallowed, had she been consulted about incidents involving Student 1. The Panel found Superintendent Sarna to be a credible witness overall. Her answers were clear, informed and honest and therefore the Panel found her testimony to be reliable in this regard.

80Superintendent Sarna at times provided opinion evidence, though she was not certified as an expert witness in this hearing. To proceed with certifying a participant expert under the two-part test¹⁰ would have required Superintendent Sarna to have observed the Member’s conduct, or to have been directly involved in the investigation with respect to the Member’s conduct, which she was not. The Panel found that the questions being asked of the witness were circumscribed and that the witness’s testimony was provided from the perspective of her role in the School as the Member’s direct supervisor. Nevertheless, the Panel did not rely on Superintendent Sarna’s evidence as expert evidence in relation to the standards of the profession or any other head of misconduct in this case.

(3) The Member

81The Panel found the Member to not be a credible witness during the hearing and found his oral testimony, where it contradicted or reinterpreted his prior statements, to be an implausible version of events, as compared to his prior statement provided to Detective Gilmour on March 22, 2016.

82First, the Panel finds that the Member contradicted, minimized, or inserted ambiguity into statements that he had previously made. For instance, the Member drew distinctions during his testimony where there previously were none and reframed his evidence to cast his behaviour in a more favourable light. The Member remained composed during his testimony, but the Panel finds that the Member’s reframing of the events appeared to be highly rehearsed.

83Second, at the time that the Member gave his statement to Detective Gilmour, the Member would have been concerned with the criminal aspects of the allegations made by Student 1 that were before him and not whether his admissions would amount to a boundary violation that would attract a finding of professional misconduct. During the recorded interview with Detective Gilmour, the Member was very forthright about the non-criminal aspects of his relationship with Student 1 as they were not then the central focus. By contrast, during his oral testimony, the Member’s testimony was vague, evasive, circuitous, and inconsistent with his prior recollections.

84Third, during his statement to the detective, the Member discussed incidents alleged to have occurred [XXX]months to [XXX]years prior. The Member’s oral testimony was given more than five years after his statement to Detective Gilmour. The Member has had more than five years to consider every detail of his previous statements and to rehearse how to characterize and tailor the evidence to these proceedings. Given the significant passage of time since the events in question and since the Member’s prior statement, the Panel finds it highly unlikely that the Member’s memory and recall of events improved with time. The Panel therefore gave more weigh to the prior video statement than it did to the Member’s inconsistent testimony at his discipline hearing.

85Moreover, the Panel found that the Member’s denial of any knowledge as to his responsibilities with students was unreasonable given the Member’s longstanding role as an educator and Vice Principal. Therefore, the Panel found the Member’s testimony implausible in this regard, and also found that the Member’s position with respect to this issue undermined his credibility as a whole. This position was entirely unreasonable and self-serving, and suggested that the Member was not testifying in a forthright manner.

86In light of the inconsistencies between his prior recorded statements and his oral testimony at this hearing, and given the Member’s obvious interest in the outcome of these proceedings, the Panel relied on previous statements to Detective Gilmour as the preferred evidence from the Member. In any instance where these two sources of evidence diverged, the Panel gave greater weight to the evidence that the Member provided to Detective Gilmour in 2016. Given that the Member knew he was speaking to a police officer, it is unlikely that he would have said something that was untrue, and that would place him in legal and even criminal jeopardy. It is much more likely that a person speaking to a police officer would downplay an incident that might place them in legal jeopardy, as opposed to exaggerating their involvement in such incident.

87The Panel also draws an adverse inference regarding the Member’s complete silence to his direct supervisor at School, Superintendent Sarna, as well as to his fellow administrators about his relationship with Student 1 and Student 1’s mother. Superintendent Sarna testified that she and the Member had a good, congenial relationship that was defined by mutual respect and that they met regularly to discuss issues as they arose in the School. Given the regular communication and the expectation that the Principal remain informed and involved in the steps being taken by Vice-Principals to support students, it is concerning that the Member did not disclose that he took on a supervision and mentorship role with a student who had [XXX] issues, and that it occurred outside of school and at the request of the Student’s mother. The Member’s silence in this regard suggests that the Member knew the relationship was inappropriate and that he had something to hide.

Q. Factual Findings

(1) The College has proven particular 4(a) of Exhibit 1

88The Panel finds, on a balance of probabilities, that the Member met with Student 1 after school hours and/or on weekends to have coffee.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016

89The Member made two separate statements about having coffee with Student 1 during his March 22, 2016 police interview. After Detective Gilmour asked the Member about the types of activities that he would engage in with Student 1 and Student 1’s brother while their parents were on a trip to [XXX] in December 20[XXX], the Member replied: “I mean, [Student 1] and I would more or less go for coffee. We’d hang out a bit more” (Exhibit 9, at page 19, Line 11 to Line 15). Later in the interview, in the context of asking about the nature of the relationship, Detective Gilmour (Q) put to the Member (A):

Q: …it sounds as – like it changed and evolved to dealing with him at school to I guess, out - outside…

A: Yeah.

Q: …the school. And how that happened. And whether it’s – I think you said something about coffee. Meeting him for coffee.

A: Oh, well he…

Q: We’re going to – yeah.

A: …like he graduated.

Q: Well…

A: Is that what…

Q: … well prior to that.

A: Well, most of the time I would just stop by the house after school.

Q: Okay. How about meeting him?

A: And have a cigarette with [the mother].

Q: Mm-hmm.

A: Sometimes with [Student 1].

Q: Okay. And how about outside of school? And outside of their residence and meeting elsewhere?

A: Well, yeah, we went – we would go to Tim Hortons. We’d go to a movie together once.

(Exhibit 9, at Page 24, Lines 18-25 and Page 25, Lines 5-7 and 14-19).

(b) The Member’s Testimony at the Hearing

90The Member testified that he never took Student 1 out for coffee. When College Counsel asked about the admissions that the Member had made to Detective Gilmour, the Member replied that he thought the detective had switched her line of questioning to asking him about events that occurred after Student 1’s graduation and so he was confused but he never went for coffee with Student 1 while Student 1 was a student.

91During cross-examination by College Counsel, however, the Member qualified that during the time that Student 1 was in [XXX]school, “I only picked up coffee – and then we would have the coffee at his house.” The Member agreed that at various times while driving Student 1 home, he would pick up coffee with Student 1. He remembered two times when Student 1’s mother asked the Member to bring coffee for her before coming to meet with the mother at their family home. The Member explained that he would drive with Student 1 to the Tim Hortons ‘drive-thru’ to pick up coffee to bring back to Student 1’s house to drink it with him there, adding that only after Student 1’s graduation he “went for dinner and coffee” with the student. When asked by College Counsel about the apparent contradiction in his evidence, the Member replied that he and Student 1 “probably went and picked up a coffee, yes”, but that he saw a distinction between sitting with Student 1 in a coffee shop to drink coffee versus going through the coffee shop drive-thru to pick up coffee with the student sitting next to him in his car and then bringing coffee back to the student’s home to drink.

(c) The Panel’s Finding

92The Member volunteered the information that he had coffee with Student 1 to Detective Gilmour in a straightforward manner, and the Panel believes that the Member would have given truthful answers to the detective about what at that time was a peripheral issue to the criminal allegations that the Member was discussing with Detective Gilmour. The Member’s explanation during his testimony of the inconsistency with his prior statements was implausible and the distinctions that the Member was trying to draw about never having sat down in a Tim Hortons or events occurring only after graduation was evasive and misleading. In the first instance where having coffee with Student 1 was discussed during the interview with Detective Gilmour, the detective had clearly indicated that she was speaking about the time when Student 1’s parents were away on vacation in December 20[XXX]. At that time, the Member was Student 1’s [XXX]school Vice-Principal. Prior to the Member’s second statement about having coffee, Detective Gilmour specifically redirected the Member to discuss the time period prior to graduation. The Panel finds it improbable that the Member could have been “confused” in either instance by the timeframes being referenced based on the transcript evidence.

93In any event, this allegation does not turn on whether going for coffee occurred before or after graduation. The Member admitted that he went for coffee with Student 1 (albeit only after graduation) while simultaneously asserting that during the time that Student 1 was a student, Student 1 accompanied the Member to pick up coffee at the Tim Horton’s drive-thru to take back to consume at Student 1’s house. The Panel finds that the explanation that the Member never actually went for coffee with Student 1 because they never sat together in a coffee shop is a distinction without a meaningful difference. Whether the Member and Student 1 stepped into a Tim Hortons together or not does not factually refute the allegation that the Member met with Student 1 after school and that the activity that he engaged in with Student 1 was having coffee. Not going into Tim Horton’s but going into the student’s home to have coffee together is, as College Counsel submitted, still going for coffee, and arguably worse.

94Both the Member’s prior admissions and his testimony make out the finding of fact that, on a balance of probabilities, the Member met with Student 1 for coffee after school and/or on weekends, as alleged at paragraph 4(a) of the Notice of Hearing.

(2) The College has proven particular 4(b) of Exhibit 1

95The Panel finds, on a balance of probabilities, that the Member smoked marijuana and/or drank alcohol with Student 1

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016

96The Member admitted to drinking alcohol with Student 1 during a summer vacation at the cottage and during a two-night tent camping trip to [XXX]in [XXX], Ontario in the summer of 20[XXX]. The Member told Detective Gilmour that he and Student 1 “did drink together” on more than one occasion and that the Member would allow Student 1 to drink and smoke marijuana in front of him (Exhibit 9, Page 34 Lines 12-13 and Page 35 at lines 20-25 and Page 36 at line 1 and Page 40 at Lines 18-22). When Detective Gilmour put to the Member, “And on occasion, you would also smoke marijuana with him” the Member replied: “we did, yeah…camping, yeah.” (Exhibit 9, Page 35 Lines 23-25 and Page 36 Lines 1-6). And again, when Detective Gilmour put to the Member that he had “smoked weed with him [Student 1] before, right?”, the Member replied “camping” (Exhibit 9, page 114, Lines 5-10).

97Detective Gilmour also put to the Member that he and Student 1 “stopped at LCBO to buy some alcohol and then smoked a couple of joints” before Student 1 “described his music, right? Doing – I guess he’s into [XXX]or you said, I think [XXX].” The Member replied: “Yeah” without objecting to or contradicting the description of events that Detective Gilmour had put to him (Exhibit 9, Page 43, Lines 10-18).

98The Member also admitted to drinking alcohol with Student 1 on the occasion that the Member stayed overnight at Student 1’s home on July 10, 20[XXX]. He told Detective Gilmour that he consumed two beers and “a shot” of the Jägermeister that Student 1 was drinking, “or two shots” (Exhibit 9, Pages 51, 112, 114 and 118). When Detective Gilmour put to the Member that on the night in July 20[XXX], he “flop[ped] on the bed next to [Student1]” (Exhibit 9, page 112, at Lines 5-7) the Member replied: “It’s – it was the drinking. I mean…and…Well, I just…passed out.” (Exhibit 9, Page 112, at Lines 8-18) to which the Member added: “Like – I was not proud of the drinking. That was the dumb mistake” (Exhibit 9, Page 114, at Lines 3-4).

(b) The Member’s Hearing Testimony

99The Member testified that prior to the two-night camping trip that he took with Student 1 in the summer of 20[XXX], he had consulted with Student 1’s mother about bringing beer on the trip. The Member said that she did not have a problem with it. The Member testified that during the camping trip, he consumed his beer while Student 1 consumed vodka and marijuana that he (Student 1) had brought for himself. The Member said that he was not surprised that Student 1 brought alcohol and marijuana on the trip, and he did not stop Student 1 from consuming them because “we were all aware that Student 1 would do what he wanted” though he testified that he told Student 1 to “be careful that stuff is strong”. The Member said that, at some point during the camping trip, Student 1 passed him one of his cigarettes (joints) and that he “did have a puff” from Student 1’s cigarette, but apart from that one time, the Member did not use marijuana with Student 1 or in Student 1’s presence. During cross-examination, the Member testified that following the camping trip, he discussed with Student 1’s mother that Student 1 had brought and consumed alcohol and marijuana on the camping trip but did not mention to her that he had taken “a puff” of Student 1’s joint himself.

100Regarding alcohol, the Member testified that other than during the camping trip, he consumed alcohol with Student 1 or in Student 1’s presence on two other occasions: during summer 20[XXX] while the Member was on vacation with Student 1’s family at a cottage and during a pizza dinner on July 10, 20[XXX]at Student 1’s family home with Student 1’s parents present, where he consumed a few beers with dinner. The Member also admitted that later that evening, he consumed a shot of Jägermeister mixed with Coke from the bottle that Student 1 was drinking, though he could not recall the precise measurement when he poured it into a glass.

101The Member also testified that Student 1 became extremely intoxicated in his presence, after having consumed most of the bottle of Jägermeister during the evening, but that he did not interfere with Student 1’s drinking. During cross-examination, College Counsel put to the Member that he had a lot more to drink that day and that he was “partying” with Student 1. The Member remembered that partying is how Student 1 described it at trial but denied that this is what they were doing. The Member said that most of the night he was watching baseball and that Student 1 had invited him to his room to listen to some music once he (Student 1) had already consumed most of the bottle of Jägermeister. Nevertheless, he recalled Student 1 asking him the next morning whether he threw up on account of drinking. The Member denied having drunk more alcohol than what he admitted to, suggesting instead that it was Student 1’s “drunken perception” that the Member had been drinking to the point that he would have needed to throw up the following morning.

(c) The Panel’s Finding

102The Panel finds that the Member, by his own admissions, smoked marijuana and drank alcohol with Student 1. While the Member’s prior admissions and admissions during the hearing make out this finding of fact, the Panel finds the Member’s prior admissions to Detective Gilmour to be more accurate (and more serious) than the admissions that the Member made during his testimony.

103The Member asserted during his testimony that he remembered taking just “one puff” of Student 1’s joint. However, there was more than one instance during Detective Gilmour’s interview where she mentioned smoking marijuana with Student 1 to the Member, where he either accepted when the detective put to the Member that he smoked marijuana with Student 1 on July 10, 20[XXX] (“Yeah”) or responded by contextualizing when it occurred (“Camping”). If the Member only ever took “one puff”, the Panel believes that he would not have said that he “smoked” marijuana with Student 1 to Detective Gilmour. The Member insisted that he was not trying to lie to the detective, but that the inconsistencies come from the fact that he was in a state of shock from being interviewed by police and accused of a crime.

104The Panel does not accept the Member’s explanation. The Panel finds it more likely that if the Member’s prior statements conveyed a false or unclear impression to a police officer about whether smoking marijuana with Student 1 occurred on more than one occasion, the Member would have been forthright about correcting that perception given that the Member was speaking to a police officer at a time when marijuana was still an illegal substance in Canada. The Panel finds that if the Member’s testimony to “one puff” were true, it would have been in the Member’s interest to be very clear and specific about it to the detective rather than telling her that he “smoked” with Student 1 during the camping trip and accepting her proposition that he also smoked marijuana with Student 1 in July 20[XXX]. The subject of marijuana came up a number of times throughout the interview and not once did the Member object to the characterization of events that he and Student 1 were smoking marijuana together.

105In his statement to Detective Gilmour and during his testimony, the Member was forthright that he consumed alcohol with Student 1 on at least three separate occasions. On one of those occasions, the Member observed Student 1 becoming highly intoxicated. While the Member did not deny that he drank alcohol, his subsequent statement to Detective Gilmour that “it was the drinking” of alcohol that caused him to pass out on Student 1’s bed, suggests that he may have had more to drink than he remembers.

106Both the Member’s prior admissions and his testimony at the hearing make out the finding of fact, on a balance of probabilities, that the Member consumed marijuana and alcohol with Student 1, as alleged at paragraph 4(b) of the Notice of Hearing.

(3) The College has proven particular 4(c) of Exhibit 1

107The Panel finds, on a balance of probabilities, that the Member went on one or more overnight camping trips and slept in the same tent with Student 1.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016 and his Hearing Testimony

108The Member testified that at the end of Grade [XXX], shortly after vacationing together with Student 1’s family at a cottage, Student 1’s mother asked him if he could take Student 1 camping. The Member agreed and during the summer in 20[XXX] took Student 1 on a two-night camping trip to [XXX] in [XXX], Ontario. The Member testified that he brought one four-person tent. Both the Member and Student 1 slept in separate sleeping bags under the same tent. When asked in cross-examination whether he had any concerns about spending two nights alone with a student in a tent as his Vice-Principal, the Member replied that he did not consider it “a Vice-Principal activity” but an activity during the summer when he was “not in school mode”. It was part of the friendship he had with the family and the Member considered it “a personal camping trip” that he went on as “a favour” to Student 1’s mother.

(b) The Panel’s Finding

109As this evidence was admitted and uncontested, the Panel finds, on a balance of probabilities, that the Member and Student 1 went on an overnight camping trip and spent two nights sleeping in the same tent as Student 1, as alleged in particular 4(c) of the Notice of Hearing.

(4) The College has proven particular 4(d) of Exhibit 1

110The Panel finds, on a balance of probabilities, that the Member allowed Student 1 to sleep over at his house.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016 and his Hearing Testimony

111In his prior statement and during the hearing, the Member admitted that Student 1 stayed over at his house on two occasions during the spring of 20[XXX], while Student 1 was in Grade [XXX]. On the first occasion, the Member testified that Student 1’s mother called him after she and Student 1 had a heated argument during which Student 1 punched holes in the wall. They were both very upset and Student 1’s mother asked if the Member could come and pick up Student 1 to spend the night at the Member’s house. She told the Member she was too distraught to have Student 1 in the house. On the second occasion, which the Member stated occurred roughly a month later, there was a similar situation. Student 1 and his parents were arguing, and Student 1 told his parents that he was leaving and going to move out of the house. Student 1’s mother called the Member again to ask if Student 1 could spend the night at the Member’s house as he would have had nowhere else to go, so the Member agreed, and Student 1 stayed over at the Member’s house a second time.

(b) The Panel’s Finding

112As this evidence was admitted and uncontested, the Panel finds, on a balance of probabilities, that the Member allowed Student 1 to sleep over at his house, as alleged in particular 4(d) of the Notice of Hearing.

(5) The College has proven particular 4(e) of Exhibit 1

113The Panel finds, on a balance of probabilities, that the Member purchased alcohol for Student 1.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016

114Detective Gilmour reviewed the events of the afternoon of July 10, 20[XXX]with the Member. She asked if the Member remembered that “according to [Student 1], you guys were drinking that night that [the brother] wasn’t in the house because you drove [the brother] out to a friend’s house in [XXX], ‘cause he wanted to have a sleepover with a buddy”, to which the Member replied “Yeah”. Detective Gilmour continued: “…And then on the way back from [XXX], you stopped at a LCBO to buy some alcohol”, to which the Member also replied: “Yeah”.

(b) The Member’s Hearing Testimony

115The Member testified that during the afternoon of July 10, 20[XXX], while driving back to Student 1’s house, the Member and Student 1 stopped at a shopping plaza for the Member to go into a Shoppers Drug Mart to pick up some pharmacy supplies. The Member insisted that he did not know where Student 1 went while he was at the pharmacy, but once he returned to the car, he saw Student 1 carrying an LCBO bag. The Member testified that Student 1 had gone to purchase alcohol at the LCBO of his own accord and that the Member only became aware that Student 1 had completed the purchase as Student 1 returned to his car. The Member said that he asked Student 1 how he got the alcohol and that Student 1 told him that he had two fake IDs. The Member and Student 1 returned to the family home to have a pizza dinner with Student 1’s parents, without discussing the purchased alcohol.

(c) Student 1’s Statements during the Criminal Trial

116During the hearing, Member’s Counsel entered an excerpt of Student 1’s cross-examination into evidence from the Member’s criminal trial (Exhibit 10). The Member’s position was that this excerpt of the court transcript showed that Student 1 had made an admission that he was the one who went into the LCBO and purchased alcohol on July 10, 20[XXX]:

Q: [The Member], I’m going to suggest went to Shoppers Drug Mart and you went to the LCBO and that you purchased the Jägermeister. That’s not your position, I gather.

A: No

Q: No.

A: He was in the LCBO with me.

Q: Oh. No. But do you agree with me that he did go to Shoppers Drug Mart? Do you remember him doing that?

A: I don’t remember him – he may have, I don’t…

Q: And…

A: …remember him going to Shoppers…

Q: And that he came in after you were inside the LCBO, do you remember that?

A: That’s possible. That is when – I bought the…

Q: Okay.

A: …Jäger there (Exhibit 10, Page 109, Lines 4-23).

117During cross-examination in the College discipline hearing, College Counsel put to the Member that he went to Shoppers Drug Mart, but that he stopped at the plaza primarily to go to the LCBO. The Member replied: “For me? No.” College Counsel also put to the Member that Student 1’s evidence during the criminal trial was that his fake ID would not have worked at the liquor store, so the Member must have purchased the alcohol for Student 1. The Member still denied purchasing alcohol for Student 1.

118As Member’s Counsel had entered an excerpt from the court transcript of the criminal trial into evidence (Exhibit 11), College Counsel asked the Panel to enter additional pages from the same cross-examination of Student 1 into evidence, which included other instances where Student 1 testified about the Member being in the LCBO and about who purchased alcohol there. The transcript of the criminal proceedings states that Member’s Counsel asked Student 1:

Q: I just want to clarify again, that on the issue of who purchased alcohol – not necessarily on that particular day [July 10, 20[XXX] but on any occasion where you’re with [the Member], your position is that you couldn’t buy alcohol because fake ID wouldn’t make it at the LCBO, was that correct?

A: Correct, yes.

Q: So, in every one of these situations, you’re suggesting, correct me if I’m wrong, that [the Member] would have purchased the alcohol?

A: Not in every – again, I said this in the tape as well…[the Member] was made as a last resort…let’s say…I had no friend that couldn’t do it then I wouldn’t hesitate to ask Paul and say, ‘Hey buddy, you know I can’t really get any booze, can you help me out?’, in which – in which he would say yes (Exhibit 11 at Pages 46-47).

Q: And I’ve already dealt with a fake ID, the third part of that is that there – there were times when you would go to your friends and get the alcohol?

A: Yes.

Q: Okay. And your friends could have and did supply to you alcohol on some of the occasions where you’re with [the Member]? It wasn’t LCBO, it was your friends?

A: Again, some instances, yes.

Q: Okay.

A: But not all the time, no.

Q: And your friends could have provided alcohol or did they provide alcohol to you including beer on the date – the occasion where you say there was the something that took place between and [the Member]?

A: No, again, I’m going to restate the fact that after we dropped my brother off, we went to the LCBO in which he bought us the alcohol for the night (Exhibit 11at Pages 47-48).

119During the cross-examination Member’s Counsel also discussed the purchase of alcohol when Student 1 was over at the Member’s house:

Q: Alright, I’m going to suggest to you that you’re the person, if that is the case, who went out and bought the alcohol?

A: You can’t use your fake ID at the LCBO. If someone would give me alcohol, yes. But, I mean, if I was with him, the chances of him buying the alcohol would be higher (Exhibit 11 at Page 97).

120Then Student 1 reiterated again that he would not have been able to purchase alcohol at the LCBO using fake ID:

Q: …you want us to understand that if you walk into the LCBO, there’s no way to beat the system, is that right?

A: At that age, there’s 100 percent no chance.

Q: Yeah. Even with fake ID.

A: Yeah, because the second they say ‘can I see your ID’ and they scan it, it’s not a real ID, it wouldn’t’ve worked (Exhibit 11 at Page 98).

121Finally, Student 1 testified, during the prior criminal proceedings, that the Member purchased alcohol for him on other occasions:

Q: Alright. So, you got somebody else to purchase alcohol for you on occasion? Because clearly you weren’t…

A: Yes.

Q: …with [the Member].

A: Well, he would often buy me alcohol for parties if I asked (Exhibit 11 at page 98).

(d) The Panel’s Finding

122The Panel finds, on a balance of probabilities, that the Member purchased alcohol for Student 1, based on the totality of the evidence before it.

123First, the Panel finds that the Member was in the LCBO with Student 1 on July 10, 20[XXX], despite his denial in his testimony before the Panel. The Panel did not find the Member’s evidence credible on this point. If the Member had not gone into the LCBO with Student 1, it is reasonable to believe that his evidence to Detective Gilmour in March 2016 would have been very similar to the evidence the Member gave in his testimony to this Panel. But it was not. Five and a half years ago, the Member told Detective Gilmour in a straightforward manner that he stopped in with Student 1 at the LCBO to buy alcohol. At that time, it was a more peripheral issue to the serious allegations that the Member was facing. However, during his College discipline hearing, the Member denied ever going into the liquor store. The Panel finds it more plausible that the Member was present in the LCBO with Student 1. Memories typically fade over time. It is implausible that the Member’s recollection of going into the LCBO with Student 1 would have improved over the past five and a half years. Moreover, the Member now (in the context of his discipline hearing) has a self-serving interest in downplaying the fact that he was at the LCBO with Student 1. This boundary issue is more concerning in the context of his discipline hearing than it was in the context of his prior criminal proceedings, at which point he admitted (in his statement to Detective Gilmour) that he was in the LCBO with Student 1.

124Second, on the issue of whether the Member purchased alcohol for Student 1, the student reiterated on three separate occasions that he could not use his fake ID to purchase alcohol at the LCBO because once a cashier scanned it, it would become immediately known that it was fake. Student 1 also testified that on other occasions, he would ask the Member to purchase alcohol for him for parties if he was unable to get it from older friends, and that the Member would oblige.

125When Member’s Counsel put to Student 1 in cross-examination that the Member came into the LCBO after he was inside, Student 1 replied that is when he bought alcohol (“the Jäger”). The Member characterized that statement as a clear admission by Student 1 that Student 1 had purchased the alcohol at the LCBO on July 10, 20[XXX]. Student 1’s stand-alone statement did not prompt any follow-up inquiry from counsel during the cross-examination to clarify whether Student 1 was contradicting himself, retracting the previous instances during cross examination where he maintained that on July 10, 20[XXX]“[the Member] bought us the alcohol for the night” or if he simply misspoke. A reasonable inference based on the totality of the Exhibit 10 and 11 evidence is that there was no genuine contradiction in Student 1’s testimony and no sudden admission that he purchased the alcohol.

126The Panel finds it more plausible that after Student 1 already testified that the Member purchased alcohol for Student 1 for parties and at the LCBO on July 10, 20[XXX], when Student 1 said that he “bought” the Jägermeister on this occasion, it was because he may have still paid for it, while nevertheless getting the Member’s assistance in the LCBO to execute the transaction at the cash register. The Panel did not treat the witness’s use of the word “bought” in that sentence as proof that Student 1 purchased the alcohol on July 10, 20[XXX]. Given the totality of the evidence from the Member, and in particular his positive response to Detective Gilmour’s question, and other statements made by Student 1 during the criminal trial, the Panel finds, on a balance of probabilities, that the Member purchased alcohol on July 10, 20[XXX] for Student 1. The Panel finds that the Member was in the LCBO shopping for alcohol with Student 1, and it is unreasonable to think that the Member would have allowed Student 1 to risk getting caught using a fake ID.

(6) The College has proven particular 4(f) of Exhibit 1

127The Panel found, on a balance of probabilities, that the Member exchanged text messages with Student 1.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016 and his Hearing Testimony

128The College relied on the Member’s own evidence to prove this allegation. During his examination in chief, the Member admitted that there were times when he exchanged text messages with Student 1. During cross-examination, the Member clarified that he had originally exchanged numbers with Student 1’s mother in Spring 20[XXX]. Student 1’s mother had contacted him following Student 1’s [XXX] crisis incident in Grade [XXX]. The Member stated that he never gave his number to Student 1, but that the student had obtained it through his mother. The Member testified that over the summer of 20[XXX], he spoke with Student 1 and that Student 1 would call or text him to discuss issues he was having with his parents, his work or just to discuss his feelings of anxiety. During these times, the Member said that he would encourage Student 1 to speak to his mother but also suggested a few strategies for handling stress to Student 1 that he used in his own life. During cross-examination, the Member also indicated that he recalled corresponding with both Student 1 and his mother by phone or text to arrange for the Member to stay at their house on July 10, 20[XXX]. The Member gave similar evidence during his interview with Detective Gilmour. When asked by the detective how he would generally communicate with Student 1, he replied that they would communicate through phone calls and text messages (Exhibit 9, Page 63, Lines 6 to 14). The Member recalled last receiving a text message from Student 1 in August 20[XXX]

(b) The Panel’s Finding

129The Member’s prior statements to Detective Gilmour and his testimony to this Panel were consistent and logical. The Panel finds that the Member exchanged text messages with Student 1 based on the Member’s own admissions.

(7) The College has not proven particular 4(g) of Exhibit 1

130The Panel finds that the College has not proven, on a balance of probabilities, that the Member closed the door to his office and was alone with Student 1. The College did not lead evidence on the Member having had a private and unwitnessed meeting in the Member’s office with Student 1. Therefore, the Panel did not make a finding of fact related to this particular, due to the College’s insufficient evidence.

R. Additional Findings of Fact

131The Panel made additional findings of fact based on the wording of paragraph four of the Notice of Hearing, which alleges that the Member had an inappropriate personal relationship with Student 1, including, but not limited to enumerated instances of that inappropriate personal relationship (at particulars 4(a) to 4(g) in the Notice of Hearing). The parties agreed that the conduct under consideration in the Notice of Hearing may include other instances of boundary violations between the Member and Student 1, based on correspondence between College Counsel and Member’s Counsel on October 7, 2021, where College Counsel listed additional particulars that the College would be pursuing in this hearing (see paragraphs 35 to 37 of this decision, above). The Panel therefore makes (or does not make) the following additional findings:

(1) The Member slept in the same bed as Student 1

132The Panel finds, on a balance of probabilities, that the Member slept in the same bed as Student 1.

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016

133During his police interview, the Member told Detective Gilmour that Student 1 went to bed first (“[Student 1] was passed out” on his bed) and then the Member went to sleep on the bed as well (Exhibit 9, at Page 59, Lines 18-25 and Page 60, Lines 1-6). The Member told Detective Gilmour that, at some point after falling asleep on Student 1’s bed, he (the Member) woke up and then went to sleep on the couch in Student 1’s room because: “I was uncomfortable, I think”. At another point in the interview, the Member said that after he and Student 1 stopped listening to music “I went to bed”. When Detective Gilmour put to the Member that he went to bed in Student 1’s bed, the Member replied: “And I crashed. I slept” (Exhibit 9, at Page 142 Lines 4-12).

134When Detective Gilmour asked why the Member got into the bed with Student 1 in the first place, the Member replied: “Just both – where we crashed” (Exhibit 9, Page 60 at Lines 5-14). On another occasion, when Detective Gilmour put to the Member that “…after a night of drinking, you’ve got this whole house to have an opportunity to sleep in a room in, and you decide to sleep in his bed, when – when there’s a couch in the room. When there’s two other guest rooms, you said in the whole house. How – how does it look?” The Member only replied: “I know” (Exhibit 9, Pages 85 at Lines 22-25 and Page 86 at Lines 1-3).

(b) The Member’s Hearing Testimony

135Contrary to his prior statement to Detective Gilmour, the Member testified at his College discipline hearing that he never slept in Student 1’s bed. Rather, the Member testified that, after being invited by Student 1 into his bedroom to record some [XXX], the Member sat on the edge of the bed with Student 1, beside Student 1’s computer, but that he never lay down on the bed with Student 1. The Member testified that he then moved to spend the night sleeping on the couch in Student 1’s bedroom and that Student 1 slept elsewhere in the house. In cross-examination, College Counsel reminded the Member that he had told Detective Gilmour that he began the night having “crashed” on Student 1’s bed. He replied that he remembered having said that, but that is not what happened, and he never actually slept in the same bed as Student 1. To explain the inconsistency, the Member testified that his memory of July 10, 20[XXX]was better during the hearing than at the time that he spoke to Detective Gilmour because he was not in a clear frame of mind during the police interview. At that time, he was shocked to have been accused of a criminal offence. The Member explained that he has since been forced to remember by having to live with the details of the criminal trial and these proceedings for six years. It is the only thing that he has thought about and has had to go back on every moment, both positive and negative.

(c) The Panel’s Finding

136The Panel finds that the Member’s hearing testimony was not credible. Given the criminal accusations that followed, it is inconceivable that the Member would have forgotten the critical detail that he never lay down on a bed beside Student 1 and would instead admit to something that did not happen, when interrogated by police about criminal allegations involving sexual offences. The Panel finds it highly unlikely that the Member would have misremembered whether he slept on Student 1’s bed at some point during that evening, especially given that during the police interview, the Member himself acknowledged that to sleep next to a student on his bed: “It looks bad. It looks really bad, when you stand back from it.” Given the Member’s acknowledgment, it is reasonable to infer that the Member would have been eager to correct any misunderstanding about his having slept in Student 1’s bed, if he had not, in fact, slept in Student 1’s bed. However, the Member did not deny that he slept on the bed or correct Detective Gilmour’s perception at any point during the police interview.

137The Panel therefore found the Member’s evidence provided to Detective Gilmour more credible and his recall and characterization of events more reliable during his interview with Detective Gilmour. Based on the Member’s own characterization of events, the Panel finds that the Member slept on Student 1’s bed for some length of time in the night, before migrating to the couch in Student 1’s bedroom.

(2) The Member Was Aware that Student 1 Used Drugs but Failed to Inform the Student’s Parents

(a) The Member’s Prior Statements to Detective Gilmour on March 22, 2016

138During his interview on March 22, 2016, the Member told Detective Gilmour that it was about Grade [XXX]when Student 1 started to talk to the Member about using prescription pills and that at some point in Grade [XXX], the Member found and threw out prescription pills when Student 1 agreed that he wanted to get rid of them (Exhibit 9, Page 30). The Member also told Detective Gilmour that it would have also been around Grade [XXX]when he learned that Student 1 was using cocaine. The Member told Detective Gilmour that he did not inform Student 1’s mother about the pills or cocaine that Student 1 was using until sometime in July 20[XXX] because Student 1 “was letting his mom know everything. So I was supporting him with that” (Exhibit 9, Pages 30-31).

(b) The Member’s Hearing Testimony

139The Member testified that following Student 1’s visit to his office in Grade [XXX]and the student’s subsequent [XXX], he learned that Student 1 was a regular marijuana user who experienced [XXX]. The Member also testified that, though he learned that Student 1 had been using marijuana when he came to his office at School, he had not written any conduct report regarding the use of drugs or alcohol on school property. The Member testified that he was not aware that Student 1 was using any hard drugs until after Student 1 had graduated from [XXX]school. The Member testified that around the end of June 20[XXX], he found prescription pills that were not prescribed to Student 1 in the student’s bedroom, but he could not recall what type of pills they were. The Member testified that he confronted Student 1 about the pills, but that Student 1 asked the Member not to tell his mother and they agreed to throw them out without telling Student 1’s mother about it. The Member insisted that he learned that Student 1 was using hard drugs only after the student’s graduation and before leaving for his vacation on July 11, 20[XXX] . He testified that Student 1 told him about a non-school sanctioned graduation trip that he took with friends to [XXX]and told him about the drug use that he was doing there.

140In cross-examination, the Member testified that when he agreed in his interview with Detective Gilmour that he knew from the end of June to early July 20[XXX] that Student 1 was taking prescription pills and cocaine, he was confused about the timing. He corrected his memory and said that he did not know that Student 1 was using cocaine. By the time the Member went on vacation on July 11, 20[XXX], he was aware that there had been cocaine on a trip that Student 1 took to [XXX], and that Student 1 may have used it, but he did not know for sure. The Member testified that because he was leaving on a three-week vacation to Europe, he did not immediately speak to Student 1’s mother about the pills and cocaine, but that he did discuss the drug use with Student 1’s mother after he returned from his trip. He added: “I did not think that Student 1 trying pills and then saying that he does not want to do that again was a serious matter. Summer was coming, the grandfather was there. I didn’t see it as a concern. I honestly didn’t think about it much.”

(c) The Panel’s Finding

141The Panel finds that by his own admissions during his police interview and during his testimony in the College discipline hearing, the Member knew that Student 1 was taking drugs and did not inform Student 1’s parents.

(3) The Member Had a Romantic Involvement with Student 1’s Mother While Continuing to Perform a Supervisory Role as Vice-Principal to Student 1

142While this particular was not enumerated in the Notice of Hearing, College Counsel indicated to the Member by a letter of October 7, 2019, that the Member’s relationship with Student 1’s mother would be at issue in the hearing (see paragraphs 35 to 37 of this decision, above). Ultimately, College Counsel did not ask the Panel to make a finding on this particular in its closing arguments, so the Panel declines to make a finding in this regard.

143While the Panel declines to make a finding because it was not pursued by College Counsel, the Panel agrees with Superintendent Sarna that associating with a parent in a personal or romantic way while having a supervisory role in relation to a student should preclude a member’s ability to work with a student. Though there is no written policy or regulation to that effect, in the Panel’s view, a close personal relationship between a supervising Vice-Principal and a parent of a student is ill-advised.

144A member’s personal relationship with a parent while supervising a student provides an opportunity for a conflict of interest. A conflict of interest may result in preferential treatment of a student or lead to a disadvantage and potential harm for a student, as occurred in this case. The more the Member became involved with Student 1’s mother personally, the less he performed the duties required of a teacher and administrator in relation to Student 1. As professional and personal lines blurred, over the course of two years a vulnerable student did not receive the professional supports that he otherwise may have received from a Vice-Principal. At the very least, having such a relationship with a parent would lead to the perception of preferential treatment of the student. As general guidance to the teaching profession, administrators with a personal association to a parent of a student, should recuse themselves from any supervisory role with that student and would accordingly be expected to disclose to their supervisor the reason for the recusal.

S. Legal Conclusions

145The Panel finds that the Member has breached subsections 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97, but that the Member did not breach subsection 1(11) for the following reasons.

(1) The College has not proven that 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)

146The Panel does not find that the Member failed to adequately supervise a student or students as no evidence was presented to establish this head of misconduct. The conduct at issue occurred outside school hours and off school property when the member was not under a professional duty to be supervising Student 1.

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

147The Panel finds that the Member failed to comply with the Act, the regulations or the by-laws contrary to subsection 1(14) of Ontario Regulation 437/97, by contravening section 32¹¹ of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession. The Divisional Court in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”)determined that expert evidence of the standards of the profession is not required where misconduct is “so notorious or generally accepted as not to be the subject of debate among reasonable persons” (Novick at para. 71). In its decision, the Court cited physical or sexual abuse as examples of misconduct that is so notorious that expert evidence is not required to prove that it breaches the standards. However, the Panel finds that a member’s misconduct does not have to rise to the level of violent abuse to be considered notorious.

148The Panel finds that it is reasonable to consider the Member’s conduct as a clear and obvious violation of professional and ethical standards. Most notably, the Member bought alcohol for, drank alcohol with, and smoked marijuana with Student 1. He also slept in the same bed as Student 1 for a portion of a night, after they had both consumed alcohol. The Member was a Vice-Principal at the time, who held a significant position of trust and authority in the school community. Therefore, the Panel finds that expert evidence is not necessary to determine that the standards of the profession were breached; they clearly were.

149The Ethical Standards of the Teaching Profession provide that Members’ professional relationships with students, colleagues, parents, guardians and the public are based on “Trust”. The Principal and the rest of his administrative team trusted that the Member was acting in accordance with his professional responsibilities. Student 1 was a student-at-risk who arrived at the Member’s office door in a crisis. The Member had after-hours interactions with the student where he learned that Student 1 used marijuana, that he drank alcohol, and learned at some point during the student’s Grade [XXX]year that the student used prescription pills and cocaine. At no point did the Member inform the Principal that a student assigned to him was [XXX]alcohol or drugs or that the Member had personal interactions with Student 1 outside the School. By keeping his personal relationship with Student 1 from his Principal, the Member violated the trust that the Principal placed in the Member as her designate in the [XXX]school where he worked (her “hands and eyes”).

150The Member also failed to uphold the ethical standard expected of members when he failed to show “Care” to Student 1 by demonstrating a commitment to [Student 1’s] well being through positive influence, professional judgment and empathy. The Member testified at various times that his conduct with Student 1 came from a place of care and support to Student 1. The Panel, however, finds that regardless of his intentions, the Member’s relationship with Student 1 had the opposite effect. The timing of the Member’s personal relationship with Student 1 coincided with the student’s downward spiral. From the time that Student 1 was in Grade [XXX]until he graduated from [XXX]school, his [XXX] became more severe, coinciding with the years when the Member was socializing with him. Rather than demonstrate a commitment to Student 1’s well being by helping a [XXX] teenager, the Member participated in his vices with him, thereby condoning and encouraging them while Student 1’s well-being deteriorated. During the time that the Member gave Student 1 focussed attention outside of school, after providing one referral to a school [XXX]during his initial meeting with Student 1, the Member did not again discuss the student’s progressively destructive and dangerous behaviour with the School or with Student 1’s mother or demonstrate an effort to help Student 1 find professional resources to confront his [XXX]issues.

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

151The Panel finds that the Member’s behaviour with Student 1 contravened subsection 1(15) on Ontario Regulation 437/97 by failing to comply with subsection 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(c) of the Education Act essentially provides that it is the duty of a teacher to exhibit strong moral values and to act as a positive role model.

152As articulated by the Supreme Court of Canada in Ross, at page 857:

The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within or outside the classroom or beyond…and because of the community position they occupy, they are not able to “choose which hat they will wear on what occasion.”

As Vice-Principal, the Member assumed a position of influence not just in a school setting. He was expected to serve not only as a role model for students in school but also within the wider school community. This responsibility does not vanish when the school bell rings. While all of the Member’s interactions with Student 1 occurred outside school hours and off school property, the Member still had a professional obligation to model exemplary conduct in his interactions with Student 1.

153The Member described himself as a positive role model for Student 1, but the behaviour that the Member actually modeled for Student 1 fell short of this duty. The Member participated in drinking alcohol and smoking marijuana with the student, he bought alcohol for the student, and observed him get high and drunk. While the Panel considers this to be very poor role modeling by any adult vis-a-vis a student, it was particularly egregious in this case because the Member knew that Student 1 had been struggling personally with [XXX]. Furthermore, this behaviour showed a flagrant disregard for one of the Member’s routinely assigned duties as Vice-Principal to discipline students who engage in such behaviour at school. Simply put, it goes completely against a Vice-Principal’s professional duties to participate in the consumption of alcohol and drugs with a vulnerable student.

154The Member testified that he learned shortly after first meeting Student 1 in his office at School that his state of crisis was precipitated in part by Student 1’s marijuana use. He also learned by speaking to Student 1’s mother that Student 1 was anxious, that the student had a strained relationship with his mother, and that there was tension at home regarding the [XXX]of his parents’ [XXX]. During the Member’s interview, Detective Gilmour also discussed that Student 1’s use of drugs escalated in Grade [XXX], when the Member discovered prescription pills in Student 1’s room sometime between late June and early July 20[XXX], and that Student 1 had taken cocaine on a graduation trip to [XXX]. Rather than assist the student by seeking out avenues for [XXX], the Vice-Principal acquiesced to Student 1’s request to help conceal it from his parents by not immediately informing Student 1’s parents of it, thereby helping to normalize the behaviour. The Member went on a three-week vacation allowing Student 1’s parents to also depart on vacation unaware of very alarming information about their son’s [XXX].

155For these reasons the Member failed in his duties as a member of the teaching profession.

(4) 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)

156The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). The terms disgraceful, dishonourable and unprofessional do not have a legislated definition, but discipline committees have defined these terms disjunctively, and in decreasing order of seriousness.¹² Conduct characterized as disgraceful is considered the most egregious. Disgraceful conduct casts serious doubt on a member’s moral fitness to perform their professional duties and on their ability to be a member of the profession. Like disgraceful conduct, dishonourable conduct has an element of moral failing, but it need not be as severe. Dishonourable conduct often involves, but is not limited to, acts of dishonesty, deceit, fraud and theft. Unprofessional conduct does not require a moral element but involves acts demonstrating persistently poor professional judgment. The Member’s numerous boundary violations with Student 1 cast serious doubt on his moral and professional judgment. He participated in and facilitated Student 1’s use of drugs and alcohol.

157The Member’s behaviour was disgraceful and dishonourable. He deceived Student 1’s parents about his behaviour. The Member took on a “father role” (Exhibit 9, Page 73 at Lines 13-14) – allowing Student 1 to stay overnight at his home, taking Student 1 on a camping trip, and supervising him when his parents went away on vacation. Yet, the Member neglected to tell Student 1’s parents that their teenaged son was using someone else’s prescription medication. Taking a student camping and sharing a tent, drinking and smoking marijuana together, participating in sleepovers at the Member’s and student’s home, or lying on a student’s bed – any one of these behaviours was disgraceful and dishonourable, casting serious doubt on the Member’s professional judgment.

158The Member’s behaviour was also unprofessional. Though Superintendent Sarna made the statement that a Vice-Principal’s job is a position without a straightforward job description (Exhibit 8), she testified that at this stage in his career, the Member would have known the expectations of an administrator and classroom teacher. He would have received regular and ongoing professional development and mentoring through daily interactions with more experienced Vice-Principals during the first years of his career as well as through the embedded, work-related mentorship from his principal.

159Beforehand, the Member would have received extensive formal training through the principal qualification program and through his experience as a classroom teacher and in teacher’s college prior to that. The Member would have also been well informed about the Act, the professional and ethical standards, the policies that were in place to uphold those standards and to inform school practices, as well as the expectation to maintain appropriate and professional boundaries with students for a minimum of 18 months following a student’s graduation, as articulated in the progressive discipline policy for staff within the Board where he worked several years. As testified by Superintendent Sarna, this policy was in effect during the time the Member worked at the Board as a teacher and as a Vice-Principal and it reflects the College’s expectations of members around relationships between Board employees and students (Exhibit 7).

160As Student 1’s supervising Vice-Principal, the Member held a “direct position of trust and authority” in relation to the student.¹³ As a consequence of his status, the Member had a professional obligation to maintain appropriate boundaries with the student. In considering whether a member’s professional obligations toward former students change post-graduation, the dynamic of that power relationship does not vanish on the day the student graduates from [XXX]school. A reasonable period of time needs to pass before that power imbalance diminishes. The position of trust and authority that exists in the classroom naturally extends outside the classroom as well. It is for this reason that members are expected to maintain appropriate boundaries with students for a minimum length of time following a student’s graduation. The Panel finds that during the two years that the Member engaged with Student 1 personally at the student’s home, at his own home, drinking, smoking, cottaging, camping, texting and speaking on the phone, the Member had betrayed his position of trust and authority in relation to Student 1. He knew or ought to have known that his behaviour demonstrated a serious lack of professional judgment and had it been known to his employer, it would have been sanctioned.

161The Panel therefore finds that the Member’s conduct in this case would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

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

162The Member’s conduct as described above, is unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Conduct unbecoming a member is often understood to include off-duty conduct that tarnishes the reputation of the profession as a whole. The Supreme Court of Canada’s decision in Ross discussed the unique role and social status of teachers. The decision affirms that a teacher’s personal life, because of their special position, still reflects on their status as teachers. Justice La Forest wrote at page 857:

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly the community’s perception of the ability of the teacher to fulfil such a position of trust and influence, and upon the community’s confidence in the public school system as a whole.

…The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.

163As in Ross, which involved a member’s activities outside the classroom, the Member’s conduct took place in his off-duty hours. Even though he testified that he was being a friend to Student 1 in his personal life, the Member was directly assigned to be Student 1’s Vice-Principal. The Court confirms that by virtue of his position as a teacher and administrator, the Member was bound to maintain appropriate professional boundaries with Student 1. This is not a question of inordinate scrutiny or more onerous standards of behaviour on the Member’s entire life, but on the aspect of his life where he engaged in inappropriate interactions and activities with a adolescent student within his catchment of support at school and with whom the Member had a professional responsibility to maintain appropriate boundaries.

164By engaging in the boundary violations that he committed with Student 1, as described above, the Member can reasonably be seen having contributed to a loss of public confidence in the public school system and in members of the profession generally as trusted authority figures, especially when it comes to vulnerable students. By his serious boundary violations, the Member jeopardized Student 1’s well-being and safety, undermined the reputation of the profession and violated the trust that parents, students and the public place in teachers.

T. PENALTY

165The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.

Date: May 3, 2022

John Hamilton, OCT Chair, Discipline Panel

Josée Landriault, OCT Member, Discipline Panel

Footnotes

1. 1See Arconti v. Smith, 2020 ONSC 2782, at para 32.
2. 2See The Law Society of Upper Canada v. Sumner, 2016 ONLSTH 157 and Paul Whiteley v. The College of Physicians and Surgeons of Ontario, 2020 CanLII 40689 (ON LRB).
3. 3Rutherford J in Pack All Manufacturing Inc. v. Triad Plastics Inc., 2001 CanLII 765 (ON SC), [2001] OJ No. 5882 (QL) quoted in Davies at para 24.
4. 4Allegation withdrawn at College Counsel’s request.
5. 5Allegation withdrawn at College Counsel’s request.
6. 6Allegation withdrawn at College Counsel’s request.
7. 7Allegation withdrawn at College Counsel’s request.
8. 8While the version of the policy entered in evidence was approved on January 30, 2018, Superintendent Sarna testified that other than the requirement that boundaries with students be respected for a minimum of 24 months (changed from 18 months) there were no other revisions to the Policy subsequent to the 2012 version.
9. 9College Counsel referred to the prior decisions of the Discipline Committee: Ontario College of Teachers v. Lewis, 2017 ONOCT 94 and Ontario College of Teachers v. Matejovic, 2012 ONOCT 24.
10. 10Westerhof v. Gee Estate, 2015 ONCA 206, at para 6.
11. 11As of January 22, 2022, section 32 of the By-laws has been renumbered to section 26.
12. 12For example, see College of Nurses of Ontario v. Rasinaho, 2014 CanLII 90721 (ON CNO).
13. 13R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para 41.