Ontario College of Teachers v. Weston, 2022 ONOCT 67

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Weston 2022 ONOCT 67

Date: 2022-06-28

DECISION, REASONS FOR DECISION AND ORDER

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

AND IN THE MATTER OF a discipline proceeding against Brendan Laurie Weston, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BRENDAN LAURIE WESTON (REGISTRATION #596031)

PANEL: Kirby Chown, OCT, Chair Rachelle Coleman Sandra Pizzuti, OCT

HEARD: June 2, 2022

Yufei (Fiona) Wang, for the Ontario College of Teachers Heather Ann McConnell, for Brendan Laurie Weston Erica Richler, 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 June 2, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Brendan Laurie Weston (the “Member”) did not attend the hearing but had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

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

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated November 24, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that Brendan Laurie Weston 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);

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

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

(d) 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);

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

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

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

C. STATEMENT OF UNCONTESTED FACTS

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

1. Brendan Laurie Weston is a member of the Ontario College of Teachers.

2. On November 29, 2011, the Member obtained a Certificate of Qualification and Registration. On March 29, 2021, the Member’s membership status with the College was changed to “Retired.” Attached as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

3. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an occasional teacher at [XXX] School (the “School”) in Toronto, Ontario.

4. At all material times, Student 1 and Student 2 were Grade [XXX] male students in the Member’s class at the School. Student 3 was a Grade [XXX] female student in the Member’s class at the School.

5. On or about March 6, 2020, the Member:

(a) raised his voice at Student 1;

(b) said to Student 1 “don’t do it mad dog”;

(c) put his hands on the shoulders of Student 1 while pressing him to sit him down on a chair;

(d) reassigned Student 1 to sit separately from the other students in a corner, asking him not to turn around and to look up at a fan or to face the wall;

(e) raised his voice at Student 2, and directed him not to interact with Student 1;

(f) sat Student 2 in a corner and told him to face the corner and/or the wall;

(g) told Student 3 to leave the classroom and to stand in the hallway; and

(h) slammed the classroom door while Student 3 was facing the door.

6. On October 14, 2020, the Board issued the Member a Letter of Discharge for his “physical and verbal mistreatment toward students” on March 6, 2020. The Board terminated the Member’s employment, effective October 14, 2020. Attached as Appendix “B” is a copy of the Letter of Discharge dated October 14, 2020.

Prior Conduct History

7. On October 28, 2014, the Board issued a discipline letter to the Member for charging and/or running at a student with clenched fists. The Member was required to attend training sessions regarding the Board’s Behaviour Management System, Restorative Practice, and Classroom Management. The Member was also required to attend anger management counselling.

8. On November 23, 2018, the Board issued a discipline letter to the Member for inappropriate conduct and inappropriate language toward students. The Member received a five-day suspension without pay. The Member was required to attend anger management counselling and to review Board policies, the Board’s Occasional Teachers Handbook, and the College’s Standards of Practice and Ethical Standards for the Teaching Profession (the “College’s Standards Document”).

9. On June 17, 2019, the Board issued a discipline letter to the Member for inappropriate language and inappropriate conduct toward students. The Member received a ten-day suspension without pay. The Member was required to comply with the responsibilities of an occasional teacher and to review Board policies and the College’s Standards Document.

10. The conduct addressed by the above-mentioned discipline letters was the subject of a complaint to the College. On or about June 29, 2020, subsequent to the conduct alleged in the current Complaint, the Investigation Committee of the College cautioned the Member in writing. The Investigation Committee recognized that the Member was an occasional teacher and sometimes was put in difficult situations. The Investigation Committee cautioned the Member to ensure that his conduct and behaviour are appropriate and consistent with the standards of the teaching profession and that he uses appropriate classroom management techniques and disciplinary methods that ensure the health and safety of students. Attached as Appendix “C” is a copy of the Decision and Reasons of the Investigation Committee and the Caution issued to the Member dated June 29, 2020.

PLEA OF NO CONTEST

11. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-10 above (the “Uncontested Facts”).

12. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him in the Notice of Hearing, being more particularly breaches of subsections 1(5), 1(7), 1(11), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

13. By this document the Member states that:

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

(b) he understands that by signing this document the evidence as set out in the Uncontested Facts (including the Appendices) will be presented to the Discipline Committee;

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

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

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

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

(g) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained legal advice.

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

15. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee may find the Member guilty of professional misconduct.

D. DECISION

6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as there was insufficient evidence to make out the allegation as set out in paragraph (c) of the Notice of Hearing. College Counsel further submitted this withdrawal was a result of negotiations in the adversarial process that resulted in the Statement of Uncontested Facts and Plea of No Contest. The Panel granted the request.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on June 2, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to subsections 1(5), 1(7), 1(11), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 10 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member used inappropriate classroom management and disciplinary measures towards students and otherwise behaved in a manner that is inconsistent with the teaching standards he is expected to uphold.

9The Panel finds the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. More specifically, the Member failed in his commitment to students’ well-being and to learning through positive influence, professional judgment and empathy (the ethical standard of “Care”). The Member was also expected to honour human dignity, emotional wellness and cognitive development in his practice (the ethical standard of ”Respect”), which he failed to do. By slamming the door in a student’s face and using inappropriate discipline strategies such as making a student face a corner or stand in the hallway, the Member did not consider the students’ well-being or the impact these actions would have on them. Moreover, referring to Student 1 as a “mad dog” showed the Member’s clear lack of respect towards the student.

10The Panel finds that the Member abused students verbally contrary to subsection 1(7) of Ontario Regulation 437/97. Calling Student 1 a “mad dog” was not only disrespectful, but also a form of verbal abuse. Teachers hold a position of trust and authority with respect to students. They are expected to foster safe and supportive learning environments for students. Name calling or using disrespectful terms to refer to students amounts to verbal abuse as it is rude behaviour that singles students out and would reasonably cause them to feel uncomfortable or embarrassed at school. The Uncontested Facts also show that the Member raised his voice at students, a form of aggressive and intimidating behaviour which also constitutes verbal abuse.

11The Member failed to supervise adequately a person who is under their professional supervision, contrary to subsection 1(11) of Ontario Regulation 437/97. More specifically, the Member sent Student 3 to stand in the hallway on her own without proper supervision. There may be occasions where removing a student from the classroom is necessary; however, the appropriate course of action is to ensure the student will be supervised once removed and assigned to another location. In this case, the Member simply expelled the student from the classroom without proper consideration for the student’s supervision.

12The Panel finds that the Member failed to comply with subsection 264(1) of the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. Clause 264(1)(c) of the Education Act requires members of the teaching profession to conduct themselves as positive role models and to lead by example, which is contrary to what the Member did when he raised his voice, insulted a student and used inappropriate classroom management strategies. Clause 264(1)(e) of the Education Act provides that teachers must maintain proper order and discipline in their classroom. It is clear the Member failed to maintain proper order and discipline among his students. Among other inappropriate actions, he sent a student outside of the classroom to stand in the hallway unsupervised and slammed the door on her, raised his voice at students, and ordered students to face a corner or a wall.

13The Member contravened subsection 1(18) of Ontario Regulation 437/97 by engaging in unprofessional conduct. He demonstrated poor professional judgment by insulting a student, sending a student outside of the classroom unsupervised and by raising his voice at students. The Member should have displayed better classroom management methods, especially given his previous discipline history.

14Finally, the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member undermined the public trust and the reputation of the teaching profession through his actions. No one should expect nor accept that a teacher call a student a “mad dog”, slam a door in a student’s face or order students to face a wall or stare at a fan. These were inappropriate, demeaning actions on the part of the Member that cannot be tolerated.

F. PENALTY Decision

15On June 2, 2022, the Panel was presented with a Joint Submission on Penalty (Exhibit 3) dated March 24, 2022. After hearing submissions on penalty, the Panel deliberated but did not reach a decision. The Panel informed the parties that it had concerns with the wording in paragraph 3(a) of the Joint Submission on Penalty that, as drafted, would allow the Member to return to teaching without having completed the coursework beforehand. Both Counsel for the College and Counsel for the Member indicated that this was not the intended outcome but agreed that the wording they had chosen inadvertently suggested that outcome. They agreed their intention was for the Member to complete the coursework set out in paragraph 3(a) before he could return to teaching. They agreed with the Panel that the wording they had used in the Joint Submission on Penalty was ambiguous and capable of the interpretation assumed by the Panel. Therefore, the parties agreed that they would endeavour to provide an amended Joint Submission on Penalty signed by the parties to clarify this issue by June 16, 2022.

16With the parties’ agreement, the hearing was adjourned to allow the parties to prepare revised wording for paragraph 3(a), to obtain their clients’ consent to the revisions and to have them sign an amended Joint Submission on Penalty, which would then be entered as a separate exhibit, marked as Exhibit 4. The Panel determined that the hearing would continue in writing pursuant to rule 9.01 of the Rules. After receiving the Amended Joint Submission on Penalty (Exhibit 4), the Panel reconvened to deliberate and render a decision on penalty.

17On June 8, 2022, the Panel received an Amended Joint Submission on Penalty (Exhibit 4) from the parties. The Panel accepts the Amended Joint Submission on Penalty and makes the following order, in accordance with its terms:

1. The Member is directed to appear before the Committee within 90 days of the date of the Decision and Order of the Discipline Committee to receive a reprimand which will be delivered by videoconference, and that 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 one month commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee in this matter;

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

(a) Prior to² the Member returning to teaching or commencing any position for which a Certificate of Qualification is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction covering classroom management and appropriate discipline. The course shall be pre-approved by the Registrar and be subject to the following conditions:

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

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

(b) within 30 days of his completion of course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

18Based on the Amended Joint Submission on Penalty, the Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.³ The Panel finds that the penalty proposed in the Amended Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Von Eppinghoven, 2020 ONOCT 139, Ontario College of Teachers v. Gartshore, 2020 ONOCT 143 and Ontario College of Teachers v. Knight, 2020 ONOCT 216.

19The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case include his prior disciplinary history with his Board going back to 2014, and his failure to remediate his concerning behaviour despite his Board’s interventions. The Member’s discipline history with the Board, evidenced by three letters of discipline issued in 2014, 2018 and 2019, speaks to a concerning pattern of inappropriate conduct. Equally concerning is that, in January 2020, mere months before engaging in the conduct at issue in this hearing, the Member was made aware that the College was investigating his conduct that was the subject of his prior Board discipline. Apparently, these warnings and disciplinary measures had no impact on the Member’s behaviour. Simply put, the Member did not learn from his mistakes. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing as well as avoiding the necessity for students and others to testify. The Panel also accepts College Counsel’s submission that these incidents generally constitute brief or minor instances of verbal abuse and inappropriate classroom management strategies. After weighing these factors, the Panel accepts that the penalty proposed by the parties would not bring the administration of the discipline process into disrepute.

20The Panel finds that the Member’s inappropriate and unprofessional conduct, despite previous warnings and disciplinary action from the Board, warrants a reprimand. Members are expected to serve as role models for students, which the Member failed to do by insulting a student and using inappropriate classroom management strategies, such as leaving a student unsupervised outside of the classroom. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

21Given the nature of the Member’s misconduct and the caselaw presented by Counsel for the College, the Panel finds that a one-month suspension is reasonable and appropriate. While the facts of the cases presented may differ from those of this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a one-month suspension falls within the appropriate range. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited must be discouraged. In accordance with the parties’ joint submission, the Member’s suspension will begin 15 days after the Panel’s Order.

22The Panel finds that the coursework regarding classroom management and appropriate discipline will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him make better decisions in any future interactions with students.

23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2Paragraph 3(a) of the parties’ original, unamended Joint Submission on Penalty (Exhibit 3) read, “within 90 days of the Member returning to teaching or commencing any position for which a Certificate of Qualification is required, the Member shall enroll in and successful complete at his own expense, a course of instruction covering classroom management and appropriate discipline. The course shall be pre-approved by the Registrar and be subject to the following conditions: […]”. Exhibit 3 and Exhibit 4 are otherwise identical.
3. 3See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.