DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v MacDonald 2022 ONOCT 07

Date: 2022-01-12

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

Ian Charles MacDonald, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

IAN CHARLES MACDONALD (REGISTRATION #101994)

PANEL: Irene Dembek, OCT, Chair Rachelle Coleman Gary Pieters, OCT

HEARD: October 4, 2021

Jordan Stone, for the Ontario College of Teachers

No one appearing for Ian Charles MacDonald

Renée Kopp, 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 4, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Ian Charles MacDonald (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Christine Le Dressay (Exhibit 2) affirmed on September 28, 2021, to show the efforts taken by the College to inform the Member of the allegations against him, the time and date of the hearing, as well as the range of penalty and costs being sought by the College. In this affidavit, Ms. Le Dressay, the office manager and law clerk at Glick Law, outlined that the College sent the necessary documents to the Member’s last known email address and physical address, and provided proof of service.

4Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the range of penalty and costs being sought by the College. The Member did not appear at the hearing and the Panel heard this matter in the absence of the Member.

5Following the hearing, the Panel found that the Member engaged in professional misconduct contrary to subsections 1(7), 1(10), 1(14), 1(18) and 1(19) of Ontario Regulation 437/97. Following submissions by College Counsel, the Panel made further orders as to penalty and costs. The following are the Panel’s reasons for the finding of professional misconduct, the penalty order, and the costs order.

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.

B. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated October 2, 2020 (Exhibit 1) are as follows:

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

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

(b) he failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

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

(d) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Ian Charles MacDonald is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] Institute (the “School”) in North York, Ontario.

3. On one or more occasions in or around the academic year 2018/2019, the Member:

(a) gestured at students with his middle finger;

(b) used profanity and/or disparaging language when he spoke to students; and/or

(c) told inappropriate and/or insensitive “jokes” and/or mimicked the accents of other cultures in a mocking and/or culturally insensitive manner while speaking with students.

4. In or around the academic year 2018/2019, the Member:

(a) failed to return evaluations/tests to students in his Grade [XXX] class;

(b) made errors in the calculation of student marks for his Grade [XXX] and Grade [XXX] classes;

(c) provided students with final marks in his Grade [XXX] class approximately two months late;

(d) failed to use accurate and/or fair evaluation practices of students’ progress for his Grade [XXX] and Grade [XXX] classes; and/or

(e) failed to respond in a timely manner, or at all, to inquiries/communications from parents and/or students regarding issues with student marks.

5. As a result of the Member providing inaccurate marks to his students and/or failing to correct those marks in a timely manner, one or more students did not apply to post-secondary programs that they otherwise would have if they knew their correct mark.

C. THE MEMBER’S PLEA

8As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

9The College called two witnesses – Gillian Evans and Todd Bushell – to provide evidence to prove the allegations set out in the Notice of Hearing. The witnesses were administrators at the School at the time of the alleged events and investigated allegations into the Member’s classroom behaviour and marking practices. 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) Gillian Evans

10Gillian Evans was the vice-principal at the School from September 2018 to August 2021. She was involved in investigating the Member after the principal received reports that the Member used inappropriate language in front of students. Vice-Principal Evans began her investigation in the fall of 2018 and interviewed approximately 15-20 students as part of her investigation. Vice-Principal Evans testified that several students reported that the Member used profanities in class such as “fucking”, “bitch”, “ass”, “retarded”, and “dumbass” and that he gave the middle finger to a student. Students also reported that he mimicked Asian accents, particularly Indian or Chinese accents, in front of the class, which offended students. As part of the investigation process, Vice-Principal Evans attended a meeting in which the Member was given an opportunity to respond to the students’ allegations. In this meeting, the Member admitted that he gave the middle finger to students, that he used profanity in the classroom, and that he mimicked accents in class.

11Vice-Principal Evans further testified that, in February of 2019, she received an email from a student’s parent that the mark on the student’s report card was incorrect, that the Member had promised the student he would correct the mark, but that he had not done so. Another vice-principal at the school had received a similar email from another parent, which was forwarded to Vice-Principal Evans around the same time. In response, Vice-Principal Evans began an investigation into the Member’s marking practices. As part of her investigation, she interviewed students in the Member’s class to see if they had concerns about their marks, whether or not they knew their marks, and whether or not evaluations were returned to students.

12Through her investigation, Vice-Principal Evans determined that there were several students that had flagged concerns either with the guidance office or with the administration that their marks were not accurate. Vice-Principal Evans interviewed approximately 15 students who made a variety of complaints about the Member’s evaluation practices – some students had not received evaluations back, others believed their report card marks to be inconsistent with the feedback that they received from the Member, others did not know what their mark was going into the final exam, and others reported that they did not know whether they were passing or failing the course. One student informed Vice-Principal Evans that he did not apply to a university program that he otherwise wanted to apply to because he believed that his final mark in the Member’s class was too low to get into that program, when it was in fact higher but only corrected later as a result of the investigation. Some of the students did not mention these issues to the Member but others reported speaking to the Member about these issues. Through Vice-Principal Evans, the College tendered into evidence the contemporaneous notes taken by the administration during the interviews conducted with students as part of its investigation into the concerns raised about the Member’s student evaluation practices.

13On February 25, 2019, Vice-Principal Evans notified the Member that the administration had still not received a marks breakdown for one of his courses, and that they had received reports from students that some of the marks for that course were incorrect. Vice-Principal Evans reviewed the Member’s marks breakdown for his grade [XXX] class and noticed that there were some errors in the calculation of the students’ marks which led to marks being inaccurate. Vice-Principal Evans further found discrepancies between the Marks Verification Report signed by the Member and the marks that the Member submitted to his students on their report cards. Throughout his communications with Vice-Principal Evans, the Member was slow to respond to requests for marks and marks breakdowns and, in some cases, did not provide a response at all.

14As of March 26, 2019, the Member had failed to provide a marks breakdown for one of his first semester classes, failed to provide revised marks for some students in another one of his classes, and had failed to contact a student’s mother to arrange for an exam review.

15In the spring of 2019, the Member was given an opportunity to respond to the information obtained by Vice-Principal Evans during the course of her investigation into his student evaluation practices and assignment of marks for his courses. In this meeting, the Member admitted that he had issues with his marks tracking system, that he was delayed in providing marks breakdowns, that approximately 16 out of 18 students had incorrect marks for a number of different reasons, and that it was possible that he did not hand back all of his students’ assignments. During this meeting, the Member did not have an explanation for any of the mark discrepancies in his student report cards.

16Finally, Vice-Principal Evans testified about the timing that marks are sent to the Ontario University Application Centre (“OUAC”). Schools send marks to OUAC by the second week of February, and students should have an opportunity to know what their first semester marks are before marks are submitted to universities. By the time that the Member provided corrected marks for some (though not all) of his students, some students had already begun receiving responses regarding their university applications.

(2) Todd Bushell

17Todd Bushell was the principal at the School at the time of the alleged events. He supervised and participated in the investigations of the Member that were the subject of Vice-Principal Evans’ testimony. Principal Bushell’s testimony was consistent with the testimony of Vice-Principal Evans regarding the results of both investigations. He also participated in some of the student interviews. Principal Bushell attended the meetings in which the Member was given an opportunity to respond to the administration’s investigation results. Principal Bushell’s testimony about these meetings was consistent with the testimony of Vice-Principal Evans.

18Principal Bushell testified about the School’s policies and procedures regarding record keeping, marks, and exams. He testified that it was standard procedure for students to be able to see their exams, and that if a student requested to review an exam, it should be made available to them within a day or two. Principal Bushell testified that each teacher was required to create a marks breakdown – a copy of every mark that each student had received in the class and a description of how that mark was calculated. Teachers were required to provide this marks breakdown to administration by the end of January by uploading them or entering them into the School’s computer system. A member of the administration then printed out a Marks Verification Report, which each teacher was required to review and approve to confirm that all marks have been verified. This report was used to create report cards. Principal Bushell further testified that teachers were expected to hand back graded tests and assignments to their students so that students could use them as a learning tool and to study for upcoming tests and assignments. If a teacher decided to collect tests and assignments after showing them to students, they would be expected to keep those tests and assignments on file.

(3) The Member

19The Member was not present at the hearing and did not present any evidence in his defence.

E. SUBMISSIONS OF COLLEGE COUNSEL

20College Counsel acknowledged that Vice-Principal Evans and Principal Bushell’s evidence contained hearsay evidence regarding students’ reports about the Member and submitted that such evidence should be admitted pursuant to subsection 15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) as it is relevant and reliable. The Member was provided with the opportunity to attend the hearing to cross-examine the College’s witnesses regarding this hearsay evidence and failed to do so. College Counsel submitted that the notes made by Vice-Principal Evans and Principal Bushell during their investigations of the Member were made contemporaneously to the student interviews, they are consistent, and therefore the notes are reliable evidence of the students’ reports to administration. The reliability of these notes is further increased by the fact that the Member had admitted many of the allegations against him when he met with school administration who gave him the opportunity to respond to the allegations. As such, College Counsel submitted that the hearsay evidence presented at this hearing should be admitted for the truth of its contents.

21College Counsel submitted that the witnesses called to testify on behalf of the College were credible, reliable, and the evidence they presented proves each of the allegations of professional misconduct on a balance of probabilities. As such, the Panel should find that the Member engaged in professional misconduct as alleged.

F. DECISION ON FINDING

22The 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.

23Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on October 4, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(10), 1(14), 1(18) and 1(19).

G. REASONS FOR DECISION

24The Panel has carefully reviewed the evidence and submissions presented in this matter. 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.

(1) Factual Findings

25The Panel finds that Vice-Principal Evans and Principal Bushell were credible and reliable witnesses. The Panel accepts the hearsay notes made by these witnesses as admissible for the truth of their contents pursuant to subsection 15(1)(b) of the SPPA. Vice-Principal Evans and Principal Bushell’s notes were contemporaneous to the interviews held with students and with the Member. Additionally, much of the information obtained from the students and from the Member was consistent with emails that Vice-Principal Evans and Principal Bushell received from students and parents during the 2018/2019 academic year. Overall, Vice-Principal Evans and Principal Bushell’s notes constitute reliable documentary evidence of the events described therein. In terms of their testimony, the College’s witnesses had a good memory of the events that they testified to and were honest if they could not recall details. Their evidence was clear throughout, consistent with their notes made at the time of the events, and consistent with the findings made by the Board following its investigation. Where they testified to the same events (for example, meetings in which the Member was given an opportunity to respond to the allegations against him) the witnesses similarly gave consistent testimony. Furthermore, the Panel did not hear evidence to contradict the College witnesses’ version of events. The Panel accepts the evidence of Vice-Principal Evans and Principal Bushell in its entirety.

26Vice-Principal Evans confirmed that several of the Member’s students reported that the Member used profanity in class and that he directed profanity at students, that the Member gave students the middle finger, and that the Member mimicked accents in class. According to interviews conducted by the School’s administrators, at least one student described the classroom as “toxic” as a result of the Member’s behaviour. When confronted with the results of the administrators’ investigation, the Member admitted the allegations and tried to excuse his behaviour by saying he was simply joking. As such, the Panel finds that the College has proven on a balance of probabilities that, during the 2018/2019 academic year, the Member:

1. Gestured at students with the middle finger;

2. Used profanity, and in particular the words “fucking”, “bitch”, “ass”, “retarded”, and “dumbass” around students, and directed this profanity towards students; and

3. Mimicked the accents of other cultures, and in particular mimicked Asian accents in a mocking and culturally insensitive manner.

27The Panel accepts Vice-Principal Evans and Principal Bushell’s evidence that the Member’s students reported delays in returning tests, and that sometimes tests were not returned at all. Similarly, the evidence shows that the Member did not provide regular feedback to his students, which left students unable to determine how to excel in the course or how to improve their marks. The Member admitted to Vice-Principal Evans and Principal Bushell that he made errors in his calculations of his students’ marks and that some of the students’ final marks could not be accurately determined as a result. The evidence of Vice-Principal Evans and Principal Bushell confirms that the Member did not provide accurate final marks for his Grade [XXX] class until approximately two months after the deadline, that the Member failed to respond to inquiries from students and parents about their marks, and that as a result of the Member’s inaccurate marks reporting, at least one student did not apply to a university program that they otherwise could have applied to if they had known their accurate marks. The Panel therefore finds that the College has proven on a balance of probabilities that, during the 2018/2019 academic year, the Member:

1. Failed to return tests to students in his Grade [XXX] class, and was not able to locate and produce those assignments when questioned about them;

2. Made errors in the calculation of marks for his Grade [XXX] and Grade [XXX] students;

3. Provided his Grade [XXX] students with corrected final marks approximately two months late;

4. Failed to use accurate evaluation practices of students’ progress for his Grade [XXX] and Grade [XXX] classes;

5. Failed to respond to requests from students or parents about marks in a timely manner or at all; and

6. As a result of the Member providing inaccurate marks to his students, at least one student did not apply to a university program that they otherwise would have if they knew their correct mark.

(2) Legal Conclusions

28The Panel finds that the Member verbally abused students contrary to subsection 1(7) of Ontario Regulation 437/97. The Member used vulgar and inappropriate language when speaking to his class. Specifically, the Member used the words “fucking”, “bitch”, “ass”, “retarded”, and “dumbass” when speaking to students. Using profanity in the presence of and while speaking to students is offensive, inappropriate, and amounts to verbal abuse of students by the Member.

29The Panel finds that the Member failed to keep records as required by his professional duties, contrary to subsection 1(10) of Ontario Regulation 437/97. As a teacher at the School, the Member was required to keep accurate records of his students’ marks, including a record as to how those marks were calculated. The Member failed to keep those records as required and, as a result, students were provided with inaccurate marks. Additionally, the Member was required to provide his students with an opportunity to review their exams if they requested to do so. When one of the Member’s students requested to review an exam, the Member failed to provide a copy of this exam for the student’s review and, as such, failed to keep records as required by his professional duties according to the School’s policy.

30The 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 32 of the College’s by-laws, which prescribes the Ethical Standards and the Standards of Practice for the Teaching Profession (i.e., collectively, the standards of the profession). The Divisional Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”) states that if the College seeks a finding that the Member has failed to comply with the standards of the profession, the College generally needs to tender expert evidence of the standards of the profession, unless the conduct is so notorious and so obviously contrary to the standards (such as physical or sexual abuse) that expert evidence is not required. The Panel did not hear submissions from College Counsel as to how Novick applies to allegations under subsection 1(14) of Ontario Regulation 437/97. However, Independent Legal Counsel (“ILC”) advised the Panel that the principle Novick applies only to allegations made under subsection 1(5) of Ontario Regulation 437/97. As such, ILC advised that expert evidence of the standards of the profession is not required for the Panel to make a finding that the Member failed to comply with subsection 1(14) and in particular that the Member failed to comply with by-law 32. The Panel accepts ILC’s advice in this case and finds that it can make a finding under subsection 1(14) in the absence of expert evidence to the standards of the profession.

31In accordance with the Ethical Standards for the Teaching Profession, members are expected to demonstrate their commitment to students’ well-being (“Care”) and to honour human dignity, emotional wellness and cognitive development of students (“Respect”). By repeatedly making inappropriate comments to his students and by mimicking Asian accents in class, the Member demonstrated a lack of care and respect for the well-being of his students. His actions also failed to foster a safe and supportive learning environment, contrary to the ethical standards.

32The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is completely unacceptable for members to mock other cultures by mimicking their accents. The Member displayed a lack of cultural sensitivity with this behaviour and attempted to downplay his actions by claiming that he was making a joke. Members are expected to create a positive learning environment for their students, to treat all students with respect, and not to make culturally insensitive jokes in the classroom. As a result of the Member’s actions, at least one student described the classroom environment as “toxic” and the Member’s conduct in this case can therefore be characterized as disgraceful, dishonourable and unprofessional.

33Finally, the Panel finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Parents expect that teachers will foster a safe and respectful learning environment, and refrain from using profanity in the classroom. Additionally, the public’s trust in the teaching profession is diminished when teachers fail to accurately and fairly evaluate students, thus affecting students’ post-secondary prospects.

H. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

34College Counsel submitted that the appropriate penalty in this case is a reprimand, a three-month suspension, and coursework regarding student evaluation and classroom management. College Counsel submitted that this penalty appropriately considers the guiding principles of specific deterrence, general deterrence, remediation, and public protection.

35College Counsel presented the Panel with four similar cases in order to establish that the proposed penalty was appropriate and that it fell within the range of penalties previously ordered for similar misconduct: Ontario College of Teachers v. Antonenko, 2019 ONOCT 79; Ontario College of Teachers v. Will, 2021 ONOCT 1; Ontario College of Teachers v. Bielby, 2018 ONOCT 38; and Ontario College of Teachers v. Crouse, 2016 ONOCT 99. In these cases, members who were found to have made vulgar and inappropriate comments to students or who failed to provide accurate and fair marks to students received a reprimand, a suspension of zero to five months, and coursework.

I. PENALTY DECISION

36On October 4, 2021, the Panel made the following order as to penalty:

1. The Member is directed to appear before the Discipline Committee within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee to receive a reprimand, which will be delivered electronically, 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 three months commencing on the 15^th calendar day following the date of the Decision, Reasons for Decision and Order of the Discipline Committee; and

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

(a) Within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding student evaluation and applying the Ethical Standards for the Teaching Profession in a diverse classroom, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Decision, Reasons for Decision and Order;

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall 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 the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a 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.

J. REASONS FOR PENALTY

37In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was mindful of the guiding principles that penalty orders should address specific and general deterrence, rehabilitation, and public protection. The Panel also recognizes the principle that like cases should be treated alike. College Counsel’s proposed penalty in this case falls with the range of penalties ordered in several similar cases before the Discipline Committee.

38The Panel considered the Member’s circumstances in this case in comparison to the cases provided by College Counsel. The Panel finds three aggravating factors to the Member’s misconduct. First, the Member repeatedly used offensive language at school and directed inappropriate comments towards his students. His behaviour was not an isolated or momentary lapse in judgment. Second, the Member’s failure to provide students with accurate marks in a timely manner had a serious adverse effect on at least one student’s post secondary education prospects, as they did not apply to a university program to which they otherwise would have. Third, the Member has a history of prior inappropriate behaviour with students, which was referred to the Investigations Committee at the College, substantiated, and for which an admonishment was issued in April of 2019. The Panel also notes that in all but one of the cases provided by College Counsel the members received the mitigating benefit of having pled guilty to the misconduct, which saved the resources that would have been spent conducting a contested hearing and avoided witnesses from having to testify. No such mitigation exists in this case. The Panel finds that the only mitigating factor in this case is that the Member admitted his misconduct when confronted with the allegations during the Board investigation. The Panel did not otherwise receive any evidence about the Member’s personal circumstances at the time of the misconduct.

39The Panel finds that the Member’s conduct warrants a reprimand. Members are expected to treat all students with respect, to foster a productive learning environment, and to keep accurate records of students’ marks and evaluations, which the Member failed to do by his misconduct. The reprimand allows the Panel to directly address its concerns with the Member and serves as a specific deterrent. Recording the fact of the reprimand on the Register serves as a general deterrent to other members of the profession.

40Given the nature and severity of the Member’s conduct, the Panel finds that a three-month suspension as proposed by College Counsel is reasonable and appropriate. The cases noted above defined the appropriate range of suspension at zero to five months. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension in the middle of this range is justified in this case. The circumstances of this case were less serious than in Antonenko, where the member made physical contact with students, which was not alleged in this case. In Antonenko, a five-month suspension was ordered. Conversely, the circumstances in this case are more serious than in Will, where the member made inappropriate comments to students but where there was no element of improper student evaluation. In that case a two-month suspension was ordered. Overall, the Panel finds that a three-month suspension is appropriate for the Member in this case. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

41The Panel finds that the coursework of instruction regarding student evaluation and applying the Ethical Standards for the Teaching Profession in a diverse classroom will assist in the rehabilitation of the Member. The Panel notes that, regardless of the language of the Order above, this coursework should be administered in separate courses – one regarding student evaluation, and the other regarding applying the Ethical Standards for the Teaching Profession in a diverse classroom. The Panel recognizes that College Counsel submitted that the courses should focus on student evaluation and classroom management. However, in the Panel’s opinion, the issue with the Member’s conduct is not that he lacked the skills to effectively manage challenging behaviour in his classroom. As such, a course in classroom management would not appropriately address his behaviour. The Panel finds that coursework in applying the Ethical Standards of the Teaching Profession in a diverse classroom is more appropriate given the cultural insensitivity displayed by the Member through his misconduct. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in the future.

42The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

K. COSTS SUBMISSIONS OF COLLEGE COUNSEL

43College Counsel sought an order for costs in the amount of $10,000 payable by the Member to the College pursuant to subsection 30(5) at paragraph 4 of the Act. College Counsel cited Rule 16.05(3) and Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee for the proposition that the College does not have to give evidence of the cost or expense of a hearing if the request is equal to or less than $10,000 per hearing day. College Counsel submitted that $10,000 in costs is appropriate as the Member was uncooperative and declined to participate in the discipline process entirely.

L. decision on costs

44On October 4, 2021, the Panel made the following order as to costs:

1. The Member is ordered to pay costs to the College fixed in the amount of $10,000, which must be paid within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee.

M. REASONS FOR costs

45In accordance with paragraph 4 of subsection 30(5) of the Act, Rule 16 and the factors in Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”), the Panel finds it appropriate to make a costs award in this proceeding.

46The Panel recognizes that an award of costs is discretionary and compensatory in nature rather than punitive. The Panel agrees with College Counsel that the College does not have to provide evidence of costs of a day of hearing if the amount claimed is equal to or less than the amount set by Tariff A (currently set at $10,000).

47Hall provides the Panel with guidance as to the factors to be considered when making a costs order:

Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.

Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.

Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.

Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.

The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.

48The Panel finds that it is appropriate to order costs against the Member in the full Tariff A amount of $10,000 for one hearing day, as requested by College Counsel.

49The Panel finds three of the Hall factors relevant to this determination. First, the Member completely refused to participate in this proceeding or to cooperate with College Counsel on any matter in the discipline process. The Member was entirely unresponsive to any communication from College Counsel regarding this case. While the College always bears the burden of proof in discipline proceedings, if the Member had participated in any way, it is possible that the parties could have agreed on some matters, narrowed the issues to be decided in this hearing, and conserved Committee resources. Second, the College was entirely successful in proving their case. Finally, the Panel did not hear any evidence on the Member’s ability to pay or any submissions as to why costs should not be ordered. Additionally, the Panel notes that College put the Member on notice that it would be seeking costs if it were successful in obtaining findings of professional misconduct.

50As such, the Panel finds that the costs order payable by the Member to the College is just and appropriate in the circumstances.