DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Duncan 2022 ONOCT 64

Date: 2022-06-16

PENALTY DECISION 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

Ryan Michael Duncan, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RYAN MICHAEL DUNCAN (REGISTRATION #492019)

PANEL: Irene Dembek, OCT, Chair Rebecca Forte, OCT Tom Potter

HEARD: May 13, 2022

Andrew Matheson, for the Ontario College of Teachers

No one appearing for Ryan Michael Duncan

Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1The penalty portion of this proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on May 13, 2022. In accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, this matter proceeded by way of an electronic hearing.

2On February 28, 2022, the Panel found that Ryan Michael Duncan (the “Member”) engaged in professional misconduct: Ontario College of Teachers v. Duncan, 2022 ONOCT 26 (Decision on Finding and Reasons for Decision). In particular, the Panel found that the Member had engaged in numerous acts of professional misconduct between 2014 and 2015, including: yelling at students; not following school protocols and policies; paying inappropriate attention to two particular students; and making inappropriate, threatening, and abusive comments to students. Based on this conduct, the Panel found that the Member contravened subsections 1(5), 1(7), 1(7.2), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97, as alleged in the Notices of Hearing dated September 11, 2017 and February 5, 2019. The College did not prove that the Member breached subsection 1(14) of Ontario Regulation 437/97.

3The Panel reconvened on May 13, 2022 to hear submissions with respect to penalty. Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 8) sworn on May 12, 2022, to show that the Member had been informed of the time and date of the penalty hearing, as well as the penalty being sought by the College. In this affidavit, Ms. Spano, a law clerk with McCarthy Tétrault LLP, outlined her communications with the Member, including the fact that the Member was aware of the date, place and time of the penalty hearing and that he did not intend to participate. Based on this affidavit, the Panel was satisfied that the Member was properly made aware of the time and date of the penalty hearing and the penalty being sought by the College. The penalty hearing did not start until approximately 30 minutes after the intended start time. Despite this delay, the Member still did not attend. The Panel therefore heard the penalty hearing in the absence of the Member.

4This is the Panel’s decision on penalty, and the reasons for the Panel’s order.

A. PUBLICATION BAN

5The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

6College Counsel reviewed the principles guiding penalty decisions by the Committee, as well as the mitigating and aggravating circumstances in the Member’s case. College Counsel presented the Panel with a draft order requesting the following: a reprimand delivered orally to the Member, the fact of which would be recorded on the Register of the College (“Register”); a four-month suspension to begin on September 1, 2022; coursework on anger management and classroom management to be completed prior to commencing or resuming a teaching position; and an assessment to be completed by a physician before the Member commences or resumes a teaching position. College Counsel submitted that the proposed order was appropriate and proportionate in the circumstances.

7College Counsel also provided the Panel with four prior decisions of the Discipline Committee in order to establish the range of appropriate penalties based on cases involving similar acts by members of the teaching profession: Ontario College of Teachers v. Pavlovic, 2021 ONOCT 31 (“Pavlovic”); Ontario College of Teachers v. Green-Johnson, 2018 ONOCT 30 (“Green-Johnson”); Ontario College of Teachers v. Aloise, 2022 ONOCT 9 (“Aloise”); and Ontario College of Teachers v. Buswa, 2020 ONOCT 192 (“Buswa”).

C. PENALTY SUBMISSIONS OF THE MEMBER

8As noted above, the Member was not present during the penalty hearing and did not otherwise provide submissions on penalty to the Panel.

D. Advice of Independent Legal Counsel

9Independent Legal Counsel (“ILC”) reminded the Panel of its powers under section 30(4) of the Act, and of the principles underlying Discipline Committee orders. ILC noted the need for absolute clarity of the wording in any penalty order made by the Panel both to ensure fairness to the Member and to allow the College to enforce the order. In response to the Panel’s questions about the nature of the assessment being proposed and whether the assessment can only be conducted by a physician, ILC advised that [XXX] assessments can be done by [XXX] as well as physicians and that it may be preferable to refer specifically to [XXX]“” and “physician” rather than to use the term “health professional”, as the latter is a defined term in the Act. ILC also noted that the order proposed by College Counsel had suggested the reprimand be delivered orally to the Member immediately after the hearing but given the Member’s indication to the College that he would not attend and his absence during the penalty hearing, the Panel may, should it decide to order one, provide an alternate time or mode of delivery for the reprimand.

E. College Counsel’s Response to ILC’s Advice

10College Counsel agreed with ILC’s advice and suggested that the Panel order a reprimand to be delivered orally within the Committee’s regular time frames rather than immediately after the hearing. College Counsel reminded the Panel that it was the practice of the College to deliver reprimands in writing where an oral delivery within the time frame ordered by a panel is not possible. College Counsel also suggested an amendment to the wording of the term in the draft order requiring the Member to undergo a medical assessment; specifically, instead of the assessment being performed by a physician only, the College would be satisfied with the assessment also being performed by a [XXX].

F. Penalty Decision

11On May 13, 2022, the Panel made the following order as to penalty:

1. The Member is directed to appear before the Committee within 90 days of the date of the Penalty Decision and Order on a date to be arranged by the Member and the Tribunals’ Office, to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, or via videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of four (4) months commencing on September 1, 2022.

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

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

(i) the Member will provide to a course practitioner(s) approved by the Registrar, a copy of the Decision on Finding and Reasons for Decision and Penalty Decision and Reasons for Decision;

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

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

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

(c) prior to commencing or resuming a Teaching Position, the Member shall undergo a [XXX] assessment by a physician or [XXX] (the “Assessor”) pre-approved by the Registrar. The Member shall provide to the Registrar, in a form satisfactory to the Registrar, a written report from the Assessor:

(i) confirming that the Assessor, as the author of the opinion, has reviewed a copy of the Decision on Finding and Reasons for Decision and Penalty Decision and Reasons for Decision of the Discipline Committee related to the matter;

(ii) confirming that, in the opinion of the Assessor, the Member is able to work in a Teaching Position without risk of adverse consequences to students or others;

(iii) setting out the opinion of the Assessor with respect to any steps to be taken, be it modified work, monitoring or treatments required to be in place in order to permit the Member to successfully work in a Teaching Position and to ensure public protection and safety; and

(iv) addressing any other questions or issues that the Registrar may require.

G. REASONS FOR PENALTY DECISION

12The Panel has carefully considered the submissions of College Counsel with respect to penalty and has reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of specific and general deterrence, denunciation, rehabilitation and remediation, transparency, and protection of the public interest. The penalty ordered is proportionate to the misconduct committed by the Member and reasonable in the circumstances.

13The Panel did not identify any clear mitigating factors in the Member’s case. The Member is entitled to and chose to contest the allegations against him. However, in doing so, he cannot be afforded the credit received by members who acknowledge their misconduct and co-operate with the College on a joint resolution discipline proceeding. The Member has not demonstrated awareness that his behaviour fell below the standards expected of teachers, such that he might receive a lesser penalty. Moreover, the Panel considers it aggravating that the Member chose not to attend either the finding stage (after the Panel granted his request for adjournment) or the penalty hearing. The Panel also finds it aggravating that the Member’s misconduct was not a single incident, but rather, the Member engaged in a pattern of disrespectful and threatening behaviour toward students and demonstrated a disregard for school policies.

(1) Reprimand

14The Panel finds that the Member’s pattern of inappropriate conduct warrants a reprimand. Members of the teaching profession are expected to: foster student well-being, ensure student safety, treat all students equitably and with dignity, and be a positive influence on students. The Panel has found that the Member failed to carry out these duties on multiple occasions. The reprimand will serve as a specific deterrent, as it will allow the Panel to directly address its concerns with the Member. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

(2) Suspension

15Given the repeated nature and severity of the Member’s misconduct, the Panel finds that it is appropriate to order a suspension of four months in duration. The Member repeatedly made inappropriate and threatening comments to students, using violent verbal imagery (i.e., “I’ll shove a bat in your face ‘til they answer”, “how would you like it if I threw you down the stairs”, and “I’m going to gun you down individually”). In addition to disrespecting students, the Member also repeatedly failed to follow school policies. The cumulative effect of the Member’s repeated misconduct is concerning to the Panel and warrants a suspension.

16Having considered the cases provided by College Counsel, the duration of the suspension is reasonable and proportionate to the Member’s misconduct. In coming to its decision, the Panel notes that the Buswa case (where there was no suspension) was of limited help in determining the duration of the suspension that should be ordered in the Member’s case. The nature of Ms. Buswa’s misconduct which included attending school under the influence of, or after consuming, alcohol, asking a student to carry boxes to her home, and making arrangements for students to attend a concert practice at a local community centre without school authorization and while she was on medical leave, was very different from the misconduct at issue in the Member’s case. Rather, the Panel was guided by the other cases presented by College Counsel.

17The Panel finds that the Member’s misconduct was more serious than the misconduct in Pavlovic, where no suspension was ordered. Although Pavlovic also involved the verbal abuse of students, the Panel finds that the violent and threatening nature of the Member’s misconduct warrants a significantly more serious penalty than in Pavlovic, and that a suspension is therefore appropriate in the Member’s case.

18Similarly, while crass and inappropriate, the comments made by the member in Green-Johnson (who received a two-month suspension) were not threatening toward students and were therefore less severe than the comments made by the Member. The Panel recognizes that Ms. Green-Johnson had a prior disciplinary history and was found to have physically abused a student by slapping a student in the head, which are aggravating factors absent in the present case. However, the Panel notes that Ms. Green-Johnson pled guilty to all of the allegations against her and entered into a joint submission on penalty with the College; and that Ms. Green-Johnson had provided medical evidence and evidence of rehabilitation to the Panel for their consideration. These factors are also absent in the Member’s case. As such, the Panel finds that it is reasonable for the Member to receive a more severe penalty than Ms. Green-Johnson.

19The member in Aloise (who suffered from medical issues requiring medical leave, hospitalization, continued treatment and care) received a five-month suspension, following an agreement on finding and partial agreement on penalty. Mr. Aloise’s conduct included inappropriate comments towards students, shoving an empty desk in a student’s direction, and throwing a chair across the classroom to get the class’ attention. In both the Member’s case and in Aloise, students were made to feel frightened by the members’ conduct. However, Mr. Aloise’s conduct, which involved actual violence (i.e., shoving and throwing furniture), was more serious than the Member’s threats of violence towards students. The Member’s misconduct therefore warrants a slightly less severe penalty than that ordered in Aloise.

20Having considered the above-noted cases, the Panel finds that it is appropriate for the Member to receive a four-month suspension. The suspension is appropriate both as a specific deterrent to the Member and general deterrent to the profession. The Panel accepts College Counsel’s position that a suspension of this duration should begin on September 1, 2022. Otherwise, much of the Member’s suspension would have been served during the summer months, when teachers are not typically expected to teach. The Panel finds that, in the circumstances of this case, beginning the suspension on September 1 would serve as a greater specific deterrent to the Member, as it will require him to use the time that he might otherwise have been teaching to reflect on his misconduct and to take any necessary steps to address his concerning behaviour. The Panel finds that the impact (be it financial, emotional, or otherwise) of a suspension being served primarily in the summer, when teachers are generally not in the classroom, is generally lower than when a suspension is served during the school year. Accordingly, the Panel accepts the College’s position that the misconduct in this case warrants a suspension beginning in September, as the impact of the suspension would otherwise be too lenient on the Member who engaged in a concerning pattern of behaviour.

(3) Coursework

21The Panel finds that requiring the Member to successfully complete pre-approved courses on anger management and classroom management is intended to assist in the rehabilitation of the Member. The coursework should remind the Member of his obligations as a teacher and help him make better decisions in any future interactions with students. The Panel finds that is in the public interest that the Member successfully complete this coursework prior to commencing or resuming any Teaching Position, so that any students placed under the Member’s care will benefit from the insight and skills the Member will gain from the course.

(4) [XXX] Assessment

22The Panel finds that the terms, conditions or limitations requiring the Member to undergo a [XXX] assessment by a physician or [XXX] pre-approved by the Registrar, prior to commencing or resuming a Teaching Position, is reasonable in the circumstances of this case. Similar terms were ordered in Aloise and Buswa. In particular, the Panel has given much consideration to the Committee’s concerns in Buswa of the possibility of a medical situation related to the Member’s misconduct, and the Panel’s mandate of public protection.

23Earlier in these proceedings, the Member sought an adjournment to provide medical documents but did not provide any such documents to the College. The Panel finds that it is in the best interest of the public, and any future students who may be under the Member’s care, to require the Member to undergo a [XXX] assessment prior to returning to teaching. This term will assist in the rehabilitation and remediation of the Member by identifying the steps to be taken (e.g., modified work, monitoring or treatments) to permit the Member to successfully work in a Teaching Position without risk of adverse consequences to students or others. The penalty proposed fulfils the College’s primary obligation to protect the public interest while maintaining fairness to the Member.

24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.