DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Angoune 2022 ONOCT 73

Date: 2022-07-07

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

Nasaire Ndoume Angoune, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NASAIRE NDOUME ANGOUNE (REGISTRATION #561940)

PANEL: Marlène Marwah, Chair Jacqueline Boulianne, OCT Myrna Tulandi

HEARD: September 27, 2021

Mtre. Christine Lonsdale, for Ontario College of Teachers

Mr. Nasaire Ndoume Angoune, absent and did not have legal representation

Mtre. Renée A. 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 electronic proceeding was held before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 27, 2021, pursuant to Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2Nasaire Ndoume Angoune (the “Member”) did not attend the hearing and did not have legal representation.

3The Member is involved in two separate proceedings before the Discipline Committee. These proceedings are described in two separate notices of hearing: Notice of Hearing No. 5127 (Exhibit 1) and Notice of Hearing No. 4402 (Exhibit 2), both dated November 18, 2019. College Counsel made an oral motion, pursuant to sub-rules 4.02(3)(a) and 5.05(4)(b) of the Rules, to have the two proceedings heard one after the other as they deal with similar issues of fact. Under clause 9.1(1)(c) of the Statutory Powers Procedure Act (the “SPPA”), the Panel agreed to hear these proceedings one after the other. Both matters are therefore before the Panel, although this matter deals only with the allegations contained in Notice of Hearing No. 5127 (Exhibit 1).

4College Counsel submitted the Affidavit of Annie Lacroix (Exhibit 4) sworn on September 20, 2021, which established that the Member was informed of the allegations against him, the time and date of the hearing, and the penalty being sought by the College. In this affidavit, Ms. Lacroix, a paralegal with the firm McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents.

5Based on this affidavit, the Panel is satisfied that the Member did receive the Notice of Hearing and all disclosure materials and that he was aware of the time and date of the hearing and the penalty that the College was seeking to impose. The Panel delayed the start of the hearing for approximately 15 minutes to allow time for the Member to appear, but to no avail. The Panel therefore held the hearing in his absence.

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. OVERVIEW

7This decision deals with two incidents described in Notice of Hearing No. 5127 dated November 18, 2019 (Exhibit 1). The first incident occurred on March 9, 2016, when the Member was an occasional teacher at École [XXX]. The College alleges that the Member showed inappropriate videos, made inappropriate comments, and took two students out of the portable classroom and left them outside in the rain while supplying for a Grade [XXX] class. The second incident occurred on April 8, 2016, at École [XXX]. The College alleges that the Member, while serving as an occasional teacher for a Grade [XXX] class, made inappropriate comments to students, failed to follow the lesson plan of the students’ classroom teacher and failed to supervise the students.

8The Panel must decide whether the allegations have been proven on a balance of probabilities and, if so, whether the conduct of the Member supports a finding of professional misconduct. The Panel finds that the Member committed professional misconduct for the following reasons.

9The Panel finds that the Member has contravened the provisions of subsections 1(7), 1(11), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. However, the Panel cannot conclude that the Member contravened subsections 1(5), 1(7.1) and 1(7.2) of Ontario Regulation 437/97 nor can it draw a conclusion of incompetence.

C. THE ALLEGATIONS

10The allegations against the Member in Notice of Hearing No. 5127 dated November 18, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Nasaire Ndoume Angoune is guilty of professional misconduct and/or is incompetent 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);

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

e) he failed to supervise adequately a person who was 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, specifically section 32 of 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);

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

j) he displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his students of a nature or extent that demonstrates that the Member is unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

PARTICULARS OF THE ALLEGATIONS ARE AS FOLLOWS:

1. Nasaire Ndoume Angoune (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Conseil des écoles catholiques du Centre-est (the “Board”) as a short-term occasional teacher.

3. On or about March 9, 2016, the Member was teaching at École [XXX] in Ottawa, Ontario.

4. On or about April 8, 2016, the Member was teaching at École [XXX] in Orléans, Ontario.

5. During the 2015-2016 academic year, Student 1 was a student in Grade [XXX] at École [XXX].

6. During the 2015-2016 academic year, Student 2 was a student in Grade [XXX] at École [XXX].

7. On or about March 9, 2016, while teaching at École [XXX], the Member:

a) showed two inappropriate music videos to a class;

b) made inappropriate comments to students, saying to Student 1: “Shut up,” “You’re sick” and “You’re crazy”;

c) made Student 1 and Student 2 leave the portable classroom for approximately 10 minutes without their coats as a disciplinary measure at a time when it was raining.

8. On or about April 8, 2016, while teaching at École [XXX], the Member:

a) said to the Grade [XXX] class where he was supplying that he did not like Grade [XXX] students and that the students had demons in them;

b) failed to follow the lesson plan left by the [female] teacher[1];

c) neglected his duty to adequately supervise the students under his supervision in a combined Grade [XXX] and Grade [XXX] class.

11The allegations against the Member in Notice of Hearing No. 4402 dated November 18, 2019 (Exhibit 2) are as follows:

IT IS ALLEGED that Nasaire Ndoume Angoune is guilty of professional misconduct and/or is incompetent 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);

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

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, specifically section 32 of 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);

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

PARTICULARS OF THE ALLEGATIONS ARE AS FOLLOWS:

1. Nasaire Ndoume Angoune (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Conseil des écoles catholiques du Centre-est (the “Board”) as a short-term occasional teacher.

3. During the 2017-2018 academic year, Student 1 was a student in Grade [XXX]at École [XXX] in Ottawa, Ontario.

4. During the 2017-2018 academic year, Student 2 was a student in Grade [XXX]at École [XXX] in Ottawa, Ontario.

5. In or around the period from January 1 to February 28, 2018, when he was teaching at École [XXX], the Member:

a) yelled frequently at students;

b) failed to manage his classroom, including, but not limited to the following:

(i) allowed students to enter and leave the classroom unsupervised during teaching periods;

(ii) failed to intervene when students were looking at pornography on their cell phones during the teaching period;

(iii) failed to intervene when students were roughhousing;

(iv) did not allow some students who were injured to leave the classroom to tend to their injuries;

(v) used his cell phone for personal reasons during teaching periods.

c) failed to react when Student 1 tried to cut himself and said: “I want to kill myself”;

d) made inappropriate comments to students, including, but not limited to:

(i) “You are a devil’s advocate” and “you’re not good, you are not the best in the class” to Student 2;

(ii) after Student 2 left the classroom crying, said to the students that Student 2 “was mean”;

(iii) in front of the students, said to a fellow teacher that this was the weakest, most disorganized and most disrespectful group in the school.

12As a reminder, this case deals only with the allegations contained in Notice of Hearing No. 5127 (Exhibit 1).

D. THE MEMBER’s PLEA

13As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

14The College presented video, documentary and oral evidence in order to prove the allegations set out in the Notice of Hearing. During the hearing, the College called four witnesses, including one witness by affidavit. The relevant evidence is set out in detail later in the reasons for the Panel’s decision. The College’s evidence is summarized briefly below.

(1) Video evidence

15The College entered into evidence two video clips of Justin Bieber’s songs “Sorry” and “What Do You Mean” taken from YouTube. The College alleges that the Member played these two videos in the Grade [XXX] class at École [XXX]: the first in its entirety and the second halfway through.

(2) Documentary evidence

16The College entered into evidence various documents: (1) notes of Jean Gauthier, principal at École [XXX]; (2) written statements from students at École [XXX] about the March 9, 2016 incident; (3) notes from Caroline Leclerc, a human resources officer; (4) an email from Sylvain Raymond, a teacher at École [XXX], sent to Marie-Josée Brosseau, the principal of École [XXX]; (5) an email from Sylvain Raymond sent to Caroline Leclerc; 6) written statements from students at École [XXX] on the incidents of April 8, 2016; (7) the curriculum vitae of Sébastien Parent; (8) handwritten notes from meetings with the Member; (9) a report on the incidents involving the Member; (10) disciplinary letters addressed to the Member.

(3) Oral testimony

17The College called four witnesses: (1) Jean Gauthier, the principal of École [XXX], who testified about the March 9, 2016 incident; (2) Cédric Bourgon, a teacher at École [XXX] in Orléans, Ontario, who testified about the April 8, 2016 incident by affidavit; (3) Sylvain Raymond, a teacher at École [XXX], who testified about the April 8, 2016 incident and whom the Member was replacing as an occasional teacher; and (4) Sébastien Parent, the human resources manager who conducted the investigation and participated in the Board’s response and recommendation leading up to the Member’s dismissal.

18For the following reasons, the Panel finds that the testimony of the four witnesses is credible and consistent on all material facts.

19Although there are some inconsistencies in the account of events, particularly between the statements of the young students, the Panel finds the inconsistencies in their statements to be minor and do not undermine the credibility of the witnesses with respect to the main facts in dispute.

20As the Member decided not to participate in the hearing, no evidence was presented in his defence.

F. THE COLLEGE’S WITNESSES

(1) Incidents of March 9, 2016

a) Testimony of Mr. Jean Gauthier, principal of [XXX]

21At the time of the incidents at issue in this case, Mr. Jean Gauthier was the principal of École [XXX] in Ottawa. Mr. Gauthier successfully completed his principal’s qualifications in 2011 and 2012, and then took up his position as vice-principal at École [XXX] in 2013. Mr. Gauthier had never met the Member until March 9, 2016, when the Member was substituting for a Grade [XXX] class. Mr. Gauthier explained how he was informed of the incidents involving the Member by the vice-principal, Mr. Remy Nougaret, and by four students in the Grade [XXX] class. Mr. Gauthier testified with the help of notes he wrote shortly after the March 9, 2016 incidents (Exhibit 3, Tab 4).

22According to Mr. Gauthier’s testimony, the Member called the secretary’s office at approximately 1:35 p.m. on March 9, 2016 and asked the principal to come to his classroom because the students had become noisy and unruly. In his testimony, Mr. Gauthier stated that the vice-principal went to the classroom (which was outside the building in a portable classroom) to intervene and remove four students that the Member had identified as “problematic.” These four students told Mr. Gauthier that the Member was constantly yelling at them, that they were forced to listen to and watch inappropriate music videos taken from YouTube, and that the Member had sent two students out of the portable classroom in the rain.

23Mr. Gauthier said that he considered the account of the four students to be very reliable, but that he still brought into his office three other students whom he also considered to be reliable to give him an independent account of what had happened. These three students confirmed the version of events of the first four students. After hearing the students’ account of events, Mr. Gauthier called the Member at the end of the school day to meet with him in his office to discuss the problems that had occurred in the classroom earlier in the day. The Member showed up accompanied by Mr. Richard Duquette, the union representative and the classroom teacher for the class in which the Member was substituting that day, as Mr. Duquette was participating in a sports activity with a group of students. The Member admitted to Mr. Gauthier that he had sent two students out of the portable classroom for two or three minutes and that he had shown video clips in the classroom to keep the students happy.

24The Panel believes Mr. Gauthier’s testimony to be reliable, particularly since he testified with notes taken shortly after the events he described. The Panel also notes that he took the trouble to bring other students into his office to corroborate an initial version of the facts, thus demonstrating a level of diligence and impartiality that should be seen in a principal. There is no reason for the Panel to doubt the veracity of Mr. Gauthier’s account of his meeting with the Member in his office. His testimony seems probable to us and is not contradicted by the evidence on file, making it highly probative.

(2) Incidents of April 8, 2016

b) Testimony of Cédric Bourgon

25Mr. Bourgon testified by affidavit (Exhibit 3, Tab 9, pp. 106-108). During the 2015-2016 academic year, Mr. Bourgon was teaching [XXX] at École [XXX]. On April 8, 2016, two Grade [XXX] or [XXX] students came to his office to get him to help them set up [XXX] nets during their [XXX] period with the Member. The students wanted to know where the other [XXX] nets were since the substitute had set up only one net. Mr. Bourgon accompanied the students to the [XXX] to show them where the posts and nets were located. While accompanying the students to the [XXX] Mr. Bourgon said he encountered a messy scene. According to his testimony, the [XXX] nets were not set up, except for one that was improperly set up and “bent ... like a banana” (Exhibit 3, Tab 9, pp. 106-116). In addition, [XXX] equipment, such as balls, were rolling around on the [XXX] floor because the storage facility was not locked. Mr. Bourgon walked over to the [XXX] equipment storage area to show the students where the [XXX] nets and posts were located. Mr. Bourgon later advised the Member to close the storage area during class for safety reasons but did not otherwise intervene and left the [XXX].

26Later, after returning from a period of outdoor [XXX] instruction, Mr. Bourgon noted that [t]he students [in the Member’s class] were going in and out as they pleased, taking anything they wanted with them: balls, rackets, even field hockey sticks. Mr. Bourgon said the Member blew his whistle a few times and yelled: “No balls, no balls,” but the students did as they pleased. Mr. Bourgon also said he observed the Member sitting in a chair looking at his cell phone when he should have been monitoring the class.

27The Panel assumes that Mr. Bourgon’s affidavit is prima facie reliable as it is a sworn statement made before a Commissioner for Oaths. Moreover, it is unlikely that Mr. Bourgon has any interest in the outcome of this case since he had never met the Member before April 8, 2016 and was speaking to him for the very first time that day. He recounts essentially the same version of events in his emails of May 3 and May 10, 2016 to Ms. Caroline Leclaire and Ms. Marie-Ève Séguin, which further reinforces the credibility and consistency of his affidavit testimony, which, moreover, was not contradicted by the evidence on record, but rather supported by the documentary evidence (Exhibit 3, Tab 13, pp. 128-137). The Panel therefore grants this affidavit sufficient probative value.

c) Testimony of Sylvain Raymond

28Mr. Sylvain Raymond was a Grade [XXX] and Grade [XXX] teacher at École [XXX]. On April 8, 2016, the Member was the occasional teacher in his [XXX] class. For the day he was absent, Mr. Raymond had left a lesson plan for the substitute for his four groups that day. In his testimony, Mr. Raymond indicated that the students were to play [XXX] in the [XXX]. The students had already received all the “drills” and all that was left was for them to practise what they had already learned during the four [XXX] periods. In his planning, Mr. Raymond instructed the occasional teacher to set up the [XXX] nets for four [XXX] and let the students stand in groups of six per [XXX]-. When he returned, he looked for the notes normally left by the occasional teachers, except that the Member had left no notes for Mr. Raymond at the end of the day to let him know how the classes had gone. He did, however, leave a broken [XXX] on his desk.

29The next day, Mr. Raymond was teaching the same group as the last period on April 8, 2016 in which the Member was substituting. He learned from the students that the occasional teacher allegedly told them that he did not want to be with them and that he was supposed to be with a class of more mature Grade 11 students that day. He also allegedly told the students that they had demons in their heads. In addition, only a few students played [XXX], while the rest were in the equipment room where there were balls on the floor or went outside the [XXX] to do whatever they wanted. According to his testimony, students also reported to him that the Member spent part of the period in a corner of the [XXX] on his cell phone. On April 15, 2016, Mr. Raymond wrote to his principal with a complaint about what the students had reported to him. Mr. Raymond stated that this was the first complaint he had made against an occasional teacher in his entire teaching career.

30As with Mr. Bourgon’s testimony, the Panel finds that Mr. Raymond’s testimony was credible and consistent, especially since it is supported by the documentary evidence provided by the students (Exhibit 3, Tab 13, pp. 128-137), despite some minor inconsistencies in their case. The main aspects of their account of events are further corroborated by the affidavit of Mr. Bourgon. The Panel therefore sees no reason to doubt his testimony and not to give it probative value.

31With respect to the written statements of students, which constitute hearsay evidence since the students did not testify at the hearing, clause 15(1)(b) of the SPPA allows the Panel to admit into evidence any written material that is relevant to the subject matter of the proceeding, even if it is otherwise inadmissible in a court of law. Hearsay evidence may thus be admitted if it is fair to do so and the evidence is reliable and necessary for the purpose of the hearing. In the opinion of the Panel, the students’ written statements are honest, reliable, detailed, consistent and more than relevant to the subject matter of the proceeding. They are also necessary for the assessment of the facts, as they constitute a direct account of what occurred during the incidents alleged in the Notice of Hearing. Accordingly, the Panel considers this evidence to be credible and gives it probative value.

d) Testimony of Sébastien Parent

32Mr. Parent has over 18 years of experience in managing labour relations files. Since 2020, he has been the Director of Human Resources for CAP (Centre d’appui et de prévention). Between 2008 and 2020, he was employed by school boards in a similar capacity. Between 2011 and 2020, he was employed as the Human Resources Manager for the Conseil des écoles catholiques du Centre-Est (CECCE). During his more than 10 years of experience with two school boards, he conducted investigations and analyses in hundreds of teacher discipline cases. In his role as Human Resources Manager, he reviewed the Member’s disciplinary file and addressed the incidents that occurred on March 9, 2016 and April 8, 2016 and prepared a report containing assessments of the Member’s conduct as well as recommendations to the board for action or penalties regarding the Member’s certificate.

33In his testimony, Mr. Parent explained that the first incident he analyzed referred to inappropriate comments made by the Member at École [XXX]. Also, the Member played video clips in class that showed inappropriate images to the students. The second incident he analyzed took place at École [XXX] in a Grade [XXX] and Grade [XXX] [XXX] class. The incident occurred in the [XXX] where students were not given any direction or adequate supervision because the Member was not paying attention to the class but was instead looking at his cell phone.

34Mr. Parent prepared a report on these two incidents following an administrative investigation, which involved interviewing student and adult witnesses. Mr. Parent described all of the information he considered: findings of fact, previous incidents involving the Member, aggravating and mitigating factors, the code of ethics outlining the values that a teacher should hold. In addition, in choosing the appropriate disciplinary measure in the circumstances, Mr. Parent also looked at the policy and similar cases. At the conclusion of his analyses, Mr. Parent recommended that the Member be removed from the list of short-term substitutes in Catholic schools, which he testified was equivalent to dismissal. In accordance with the school board’s obligations, Mr. Parent also filed a complaint with the College and notified the Children’s Aid Society of the incidents that occurred on March 9 and April 8, 2016.

i. Qualification of Mr. Sébastien Parent as a participant expert in the field of standards for the teaching profession

35College Counsel states that, according to the criteria established in Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof” decision), Mr. Parent meets the definition of a participant expert. A witness may give opinion evidence if it is based on his or her observation of or participation in the events in question, and if the opinion is based on his or her skill, training and experience (see Westerhof, at para. 60).

36The College argued that Mr. Parent could be considered a participant expert because he is a seasoned human resources professional for school boards in the French-language public and Catholic systems who has acquired the necessary skills, training and experience in managing investigations and analyzing teacher discipline cases. Although he did not observe the Member’s behaviour directly, he was involved in the events leading up to the investigation resulting from the complaints against the Member received from both schools regarding the March 9 and April 8, 2016 incidents (Exhibit 3, Tab 15, pp. 143-151). In addition, he analyzed his disciplinary record and made recommendations. He had also formed an opinion about the Member’s failings by comparing them to the expectations held of a teacher under the standards of the profession.

37To support its claim, the College relied on the following decisions: Ontario College of Teachers v. Douglas, 2017 ONOCT 18; Ontario College of Teachers v. Armstrong, 2019 ONOCT 48. In Douglas, the Panel accepted the expert evidence of an “associate director” of a school board who held a variety of administrative positions, including that of superintendent of education on the board at the time of its investigation of the Member. The Panel then found that “based on her role in the investigative process and her extensive expertise as a teacher and administrator, Ms. Johnston meets the criteria of a participant expert as articulated in Westerhof” (see p. 7 of the decision). In Armstrong, the school board’s superintendent in charge of human resources who received complaints about the incidents in question was recognized as a participant expert and provided testimony on the relevant standards of practice.

38The Panel is of the view that the same reasoning can easily be adopted with respect to Mr. Parent. The Panel therefore finds that Mr. Parent meets the definition of participant expert set out in Westerhof. Once it reaches this conclusion, the Panel must continue its analysis to ensure that Mr. Parent’s testimony is admissible under the criteria established by the Supreme Court of Canada in Mohan.[2] In this case, Mr. Parent’s testimony is relevant to the issue of whether the Member violated the standards of the profession as alleged by the College. It is necessary because the Panel must hear evidence about these standards before deciding whether they have been breached (Novick v Ontario College of Teachers, 2016 ONSC 508). There is no exclusionary rule preventing the admission of Mr. Parent’s testimony, and he is a suitably qualified expert, as explained above, based on his experience and expertise. The Panel therefore qualifies Mr. Parent as a participant expert in the area of standards for the teaching profession.

G. SUBMISSIONS OF COLLEGE COUNSEL

39College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in items (a) to (i) of the Notice of Hearing (Exhibit 1), on a balance of probabilities. She asserts that the Panel must find that the Member committed professional misconduct in accordance with these allegations. The College did not present any evidence with respect to the allegation of incompetence set out in (j) and therefore did not specifically ask the Panel to rule on this allegation of professional misconduct. With respect to the allegations in (a) and (f), College Counsel submits that it would be more prudent to make a finding of misconduct under either subsection 1(5) or 1(14), but not both, as making a finding under both would be duplicative.

40College Counsel reviewed the relevant evidence and stated that all of the witnesses were credible. She argued that there were no contradictions between the witnesses in their testimonies and that the witnesses described their own perceptions, but also a very consistent view of what happened during the two incidents that took place on March 9 and April 8, 2016.

H. DECISION ON FINDING

(1) Onus and Standard of Proof

41The 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 SCR 41, which is proof on a balance of probabilities.

(2) Decision

42Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel finds that the Member committed acts of professional misconduct within the meaning of Ontario Regulation 437/97, subsections 1(7), 1(11), 1(14), 1(15), 1(18) and 1(19). However, the Panel cannot find that the Member committed professional misconduct within the meaning of Ontario Regulation 437/97, subsections 1(5), 1(7.1) and 1(7.2), nor can it make a finding of incompetence.

I. REASONS FOR DECISION

43The Panel has carefully reviewed the evidence and the 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

(a) Allegation 7(a)

44The Panel finds, on a balance of probabilities, that on or about March 9, 2016, the Member showed a class two inappropriate video clips, as alleged at item 7(a) of the Notice of Hearing.

45Seven students in the Grade [XXX] class complained to the vice-principal and principal that the Member showed two video clips of Justin Bieber’s songs entitled “Sorry” (Exhibit 5) and “What Do You Mean” (Exhibit 6) that were sequentially linked on YouTube. The students were interviewed separately by the principal who asked them to describe what they saw. The Panel took their hearsay evidence and this evidence was admitted by the Panel for the reasons set out in paragraph 31 above. The Panel considers these statements to be reliable, consistent and necessary to the assessment of the facts and therefore gives them significant weight. In their own words, the students described what the videos showed:

a) [XXX] indicated that “[...] he [the Member] played two videos that were inappropriate for children” (Exhibit 3, Tab 5, p. 87).

b) [XXX] recounted that the videos showed “sex parts, girls touching their private parts and they were hitting their buttocks online. He [the Member] even pointed at the screen when it happened” (Exhibit 3, Tab 5, p. 86).

c) [XXX] wrote that “he talked about sexual things” and that the Member “showed the buttocks of the girl who was twerking” (Exhibit 3, Tab 5, p. 90).

d) [XXX] pointed out that “He [the Member] pointed to something gross” (Exhibit 3, Tab 5, p. 93).

46Although several students informed the Member that these video clips were inappropriate, the occasional teacher allowed them to play and asked the students to continue watching them in silence. In the opinion of the Panel, the students’ written statements are honest, reliable, detailed and consistent. Therefore, the Panel considers this evidence to be credible and gives probative value to the students’ written statements. The Panel finds that the students did watch two video clips that the students themselves deemed inappropriate.

47In addition, Mr. Gauthier testified that, during his meeting with the Member after school, the Member told him that he had decided to play music to “calm the people [students] down” and because he “wanted to do something nice for them during the silent reading.” At this meeting, the Member also reportedly confirmed that he played the “Sorry” and “What Do You Mean” videos in their entirety, and that the images were projected on a screen facing the students. Although the Member made this admission to Mr. Gauthier, he maintained that he found the videos appropriate since he watches them with his own children. As noted above, the Panel accepts Gauthier’s testimony as credible and consistent in this regard.

48The Panel finds that the music videos were explicit and indeed inappropriate. The lyrics of the song “Sorry” deal with adult themes such as break-ups and intimate adult relationships. The music video for this song shows many young women dancing, sometimes suggestively. The first half of the music video for the song “What Do You Mean” shows Justin Bieber and a young woman undressing and kissing in a motel room.

49These scenes and themes are not appropriate for young Grade [XXX] students and have nothing to do with the subject that the Member was to teach as an occasional teacher. The students themselves understood that the video clips were not intended for them. Their written testimonies demonstrate that they were aware of the sexual innuendo in the video clips of these songs, which underscores the inappropriate nature of these videos in a school setting.

50Accordingly, the Panel finds that, on a balance of probabilities, the Member showed two inappropriate music videos to a class, as alleged in item 7(a) of the Notice of Hearing.

(b) Allegation 7(b)

51The panel finds, on a balance of probabilities, that on or about March 9, 2016, the Member made inappropriate comments to students by telling Student 1: “Shut up,” “You’re sick” and “You’re crazy,” as alleged in item 7(b) of the Notice of Hearing.

52The fact that the Member used these inappropriate words was confirmed by Student 1 and two other students who witnessed it. In his written notes, Student 1 recounts that the Member “yelled at me for not having all my [XXX] stuff. He kicked me out in the rain because I asked him a [XXX] question” (Exhibit 3, Tab 5, p. 89). According to a student’s written account, the event occurred when Student 1 was “laughing very hard” in the classroom. The Member allegedly did not give him the worksheet for his class work because he had run out of copies. Student 1 then reportedly asked the Member if he could continue his [XXX] assignment instead. One student confirmed in her notes that the Member “yelled” at Student 1: “Shut up,” “You’re sick” and “You’re crazy,” “You can’t tell me what to do! Go outside!” (Exhibit 3, Tab 5, p. 90). Another student who witnessed this scene corroborated these facts, namely that the Member shouted at Student 1 (Exhibit 3, Tab 5, p. 94).

53In his testimony, Mr. Gauthier also recounted that students had complained that, during his substitution on March 9, 2016, the Member had yelled at Student 1: “Shut up,” “You’re sick” and “You’re crazy,” “You can’t tell me what to do” and that the Member had made Student 1 leave the portable, because he had allegedly suggested continuing his [XXX} exercises since he was missing a worksheet for the [XXX] class.

54The Panel finds that the facts underlying the allegation in paragraph 7(b) of the Notice of Hearing have been established. All the witnesses have almost identical recollections of what the Member said to Student 1 and why he said it. The testimonies of the students and Mr. Gauthier about the Member’s comments are consistent. Therefore, the Panel finds this evidence credible and gives significant weight to the written statements of the students and the testimony of Mr. Gauthier. There is one very minor inconsistency in the evidence regarding a detail about the worksheet which Student 1 did not receive, namely whether it was a worksheet for [XXX] class (according to Mr. Gauthier’s testimony) or for [XXX] class (according to Student 1’s testimony). The Panel accepts that there may be minor inconsistencies in testimonies from time to time, especially when dealing with children around [XXX] years of age. However, in this case, the evidence of the allegation does not rest on these marginal details. In other words, the inconsistencies do not relate to the facts giving rise to the professional misconduct.

55Accordingly, the Panel finds that it is more likely than not that the Member made inappropriate comments to students by telling Student 1: “Shut up,” “You’re sick” and “You’re crazy,” as alleged in paragraph 7(b) of the Notice of Hearing.

(c) Allegation 7(c)

56The Panel finds, on a balance of probabilities, that on or about March 9, 2016, the Member sent Student 1 and Student 2 out of the portable classroom for approximately 10 minutes while it was raining, as a disciplinary measure, as alleged in item 7(c) of the Notice of Hearing. However, due to insufficient evidence presented, the Panel cannot conclude that the students were sent outside without their coats, contrary to what is alleged in item 7(c).

57Mr. Gauthier testified that students advised him that on March 9, 2016, the Member sent Student 1 out because Student 1 had suggested that he continue doing his [XXX] exercises rather than the work the Member had asked students to do, since he was missing a sheet of paper, as described above. One student recounted in her notes that Student 1 “didn’t have a sheet so he asked if he could finish the [XXX] work.” The Member then allegedly told him to “go outside” (Exhibit 3, Tab 5, p. 91). Another student added that “the man was angry” and told Student 1 to leave the classroom (Exhibit 3, Tab 5, p. 93). A third student wrote that “the man was mad at [Student 1]” and that he sent him out of the classroom (Exhibit 3, Tab 4, p. 94). The Member also admitted during the administrative investigation that he sent a student outside the portable classroom in the rain (Exhibit 3, Tab 14, p. 154).

58Five student witnesses and the student involved also described in their notes that, during the same period, Student 2 was sent out of the portable classroom into the rain with his work and pencil. Student 2 wrote that the event took place when the Member was explaining to students how to do the [XXX] assignment “and I told him that I already knew what to do and he yelled at me and he kicked me out of the portable in the rain” (Exhibit 3, Tab 5, p. 88). A student reports in his notes that the Member “didn’t even let her talk and put her outside with her work in the rain, for no reason” (Exhibit 3, Tab 5, p. 86). In his notes, Student 1 wrote that “he [the Member] put [Student 2] outside in the rain with his work” (Exhibit 3, Tab 5, p. 89). In her version of events, a student wrote that the occasional teacher told Student 2 to “go work outside” (Exhibit 3, Tab 5, p. 91). Similarly, another student wrote that “the man told her to shut up and go outside when [Student 2] replied, ‘I don’t care’.” According to one student, Student 2 “wanted to tell the occasional teacher” that they already knew what to do, but the Member “didn’t even let him talk and put him outside with his work in the rain” (Exhibit 3, Tab 5, p. 86). Another student recounts that Student 2 was whispering, then asked a classmate a question, which apparently “really made him mad, then he sent her outside.” (Exhibit 3, Tab 5, p. 94).

59According to the school board’s investigation, Student 2 was outside for approximately 10 minutes (Exhibit 3, Tab 16, p. 153) and, according to Mr. Gauthier’s testimony, there was heavy rain that day. The fact that it was raining on that day is not in doubt according to the evidence, but the Panel had to address some of the uncertainties about the number of students sent outside and the length of time they were outside.

60The Panel first notes that the evidence indicates that the Member admitted to Mr. Gauthier that he sent one student outside for approximately three minutes (Exhibit 3, Tab 4, p. 83). Mr. Gauthier’s notes make no mention of a second student. According to one student’s notes, Student 2 apparently remained outside “for at least 10 minutes” (Exhibit 3, Tab 5, p. 86). In his aggravating factors following the investigation, Mr. Parent notes the fact that the Member “admits to sending some students outside the portable” and later, in his recommendations, that the Member “admits to sending two students outside” [emphasis added]. At the investigation stage, however, it is stated that the Member “admits to putting one student outside” [emphasis added] (Exhibit 3, Tab 16, pp. 153-164). Nevertheless, a total of five students reported in their written statements that the Member removed Student 2 from the portable classroom, while three students wrote that he did the same with Student 1. In his testimony, Mr. Gauthier related that, during his meeting with the Member, the Member allegedly admitted that he sent a student outside, but he stated that the student was there for two or three minutes waiting, and that the student was the one who was angry and that the student did not go outside to work.

61Despite certain differences, the Panel gives greater weight to the written statements of the students than to the statements of the Member reported in the evidence. On the one hand, the Panel does not consider the Member’s statements to be generally credible since he did not always appear to be candid in his responses about other aspects of his conduct during his interview with Mr. Gauthier, including whether or not the students had actually seen the video clips. He continued to maintain that there was nothing inappropriate in his videos. On the other hand, the students’ version of events is sufficiently consistent to conclude, on a balance of probabilities, that the Member did send Student 1 and Student 2 out of the portable classroom while it was raining that day. The Panel finds that Student 2 was there for about 10 minutes but cannot make any findings of fact on the issue of duration with respect to Student 1, due to lack of evidence in this regard.

62Finally, Mr. Parent also concludes in his report that Student 1 and Student 2 were thrown out without their coats (Exhibit 3, Tab 16, p. 163), as also alleged in item 7(c) of the Notice of Hearing. It should be noted, however, that this information is not found anywhere else: neither in the description of the facts, nor at the administrative investigation stage, nor in the list of aggravating factors. Moreover, none of the students mention it in their notes. The Panel therefore considers that it has not received sufficient evidence to corroborate this information and conclude that the students were not wearing their coats when they were sent outside.

(d) Allegation 8(a)

63The Panel finds, on a balance of probabilities, that on or about April 8, 2016, the Member told the Grade [XXX] class in which he was substituting that he did not like the Grade [XXX] students and that the students had demons in them, as alleged in item 8(a) of the Notice of Hearing.

64In his testimony, Mr. Raymond, who was the classroom teacher for the Grade [XXX] and Grade [XXX] class, testified that, following the four [XXX] periods in which the Member was substituting on April 8, 2016, students reported to him that “something was wrong” on the day in which the Member was substituting. Among other things, the Member allegedly told students that they had demons inside them or the devil in their heads.

65One of the students wrote that “the substitute was saying offensive stuff to my Grade [XXX] class. They were telling us how he didn’t want to teach elementary school students because we weren’t mature enough. He only wanted to teach the high school students” (Exhibit 3, Tab 13, p. 137). Similarly, Tristan recounted in writing the following: “So, in [XXX], the teacher started telling us stories about how he doesn’t like Grade [XXX] students [...] he then said we were stupid [...]” (Exhibit 3, Tab 13, p. 135). The Member also allegedly told the students that they were not civilized (Exhibit 3, Tab 13, p. 128).

66Given Mr. Raymond’s testimony, which is supported by the documentary evidence, as well as the written accounts of the students in the group in question, the Panel agrees that it is more likely than not that the Member used the insulting language alleged in item 8(a) of the opinion.

(e) Allegation 8(b)

67The Panel finds, on a balance of probabilities, that on or about April 8, 2016, the Member failed to follow the lesson plan left by the teacher, as alleged in item 8(b) of the Notice of Hearing.

68In his testimony, Mr. Raymond testified that he had left a lesson plan for the day with the occasional teacher. He had instructed that the four groups for the day were to play [XXX] in the [XXX] and that the occasional teacher was to set up the [XXX] nets on four [XXX] so that the students could be placed in groups of six per [XXX] (Exhibit 3, Tab 11, p. 125).

69After the day on which the Member was substituting, Mr. Raymond made a complaint against the Member to the school principal, Ms. Marie-Josée Brosseau. In an email sent to Ms. Brosseau on April 15, 2016, Mr. Raymond explained the following about the Member:

[H]e had my preparation in hand and decided not to ask for help in setting up the nets, which he did not do (except for one net out of a possible four) [...] He declined help from my students and did not supervise the students during the period as he was on his cell phone ALL day. Julien, Éric and Cédric [teachers] showed up in my classes during the day to restore order because there were balls EVERYWHERE and this man was on his phone... (Exhibit 3, Tab 11, p. 122)

70During his testimony at the hearing, he also recounted that the students were at the end of the [XXX] section and had already acquired the skills necessary to play during the last two weeks. According to the account of one student in the group, the Member “took out one [XXX]net (instead of four)” and told the students that they were going to “play half [XXX], half [XXX] ” (Exhibit 3, Tab 13, p. 135), which does not correspond to the lesson plan prepared by Mr. Raymond.

71As explained above, the Panel finds the testimony of Mr. Raymond to be credible and consistent and further supported by the documentary evidence. Accordingly, the Panel concludes that it is more likely than not that the Member did not follow the lesson plan left by the teacher, as alleged in item 8(b) of the Notice of Hearing.

(f) Allegation 8(c)

72The Panel finds, on a balance of probabilities, that on or about April 8, 2016, the Member neglected his duty to adequately supervise the students in his care in a combined Grade [XXX] and Grade [XXX] class, as alleged in item 8 (c) of the Notice of Hearing.

73According to a student’s written account, the Member “was on his phone for most of the class. [He was sitting on a chair near the bleachers with his phone texting ≠ calls...45 minutes.]” (Exhibit 3, Tab 13, p. 135). Moreover, according to the affidavit testimony of Cédric Bourgon, a witness to the events that day, students were “going in and out as they pleased, taking with them whatever they wanted” (Exhibit 3, Tab 9, p. 107). Mr. Bourgon also reported that the Member was “sitting on a chair in the corner of the [XXX], cell phone in hand, not watching the class” (Exhibit 3, Tab 9, p. 107). It is therefore clear to the Panel that the Member was not in control of the class and was indifferent to what the students were doing during the four periods of [XXX].

74When asked about his use of the cell phone during class in a meeting with two vice-principals and his AEFO representative on May 5, 2016, the Member responded that he “sometimes checks something quickly [on his cell phone]” (Exhibit in Tab 14, pp. 150 and 151). The Panel finds that this response does not appear to be entirely truthful, as it does not appear to be consistent with all of the testimonies taken by the Panel.

75The Panel finds, therefore, on a balance of probabilities and on the evidence before it, that the Member neglected his duty to adequately supervise the students in his care in a combined Grade [XXX] and Grade [XXX] class, as alleged in item 8 (c) of the Notice of Hearing.

(2) Legal conclusions

76The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. Thus, the Member committed the following acts of professional misconduct: (1) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7); (2) 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); (3) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14); (4) 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); (5) 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); (6) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

77However, the Panel makes no finding with respect to the allegation based on the provisions of Ontario Regulation 437/97, subsection 1(5). Nor can the Panel find that the Member abused students physically, contrary to the provisions of Ontario Regulation 437/97, subsection 1(7.1), or that he abused students psychologically or emotionally, contrary to the provisions of Ontario Regulation 437/97, subsection 1(7.2).

(a) The Member did not fail to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

78It is unnecessary for the Panel to make a finding with respect to the allegation based on Ontario Regulation 437/97, subsection 1(5), as the Panel finds that the Member breached the ethical standards of the profession contrary to subsection 1(14) of the Regulation. Although the Panel had the opportunity to hear from a participant expert, Mr. Parent, at the hearing, his testimony focused exclusively on the standards of professional conduct, which are set out in section 26.02 of the College’s by-laws. The Panel finds that in order to rule on a contravention of subsection 1(5) of the Regulation, Mr. Parent’s testimony would have had to relate to some professional standard.

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

79It was established that the Member made inappropriate comments to students by telling Student 1 “Shut up,” “You’re sick” and “You’re crazy” before kicking him out of the portable classroom and into the rain. It was also established that the Member told a Grade [XXX] class in which he was substituting that he did not like the Grade [XXX] students and that the students had demons in them.

80To receive or even hear this kind of condescending comment from a person in a position of authority and trust such as a teacher can only be demeaning to students. Such comments are not conducive to learning and demonstrate a lack of judgment on the part of the Member. Teachers – professionals – are expected to respond better to certain behaviours of more difficult students or to the stress of occasional teaching in general. It is therefore highly likely that this type of language may constitute verbal abuse in contravention of the provisions of Ontario Regulation 437/97, subsection 1(7).

(c) The Member did not abuse a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1)

81The Panel is unable to conclude that the Member physically abused students in contravention of Ontario Regulation 437/97, subsection 1(7.1).

82The College alleges that the Member’s action of putting students outside in the rain underlies the allegation based on subsection 1(7.1) of the Regulation. Taking two Grade [XXX] children out of the portable classroom, between three (according to the Member) and 10 minutes (according to the account of one of the students), knowing that they will be in the rain is certainly not a method of classroom management that the Panel endorses or that is appropriate or acceptable. That being said, in the specific circumstances of this case, this decision by the Member cannot constitute physical abuse.

83The Panel takes into account the fact that this incident occurred on March 9, a day when it was raining. This means that the temperatures were most likely above freezing. Without saying that the weather was mild, the temperature that day – and the College did not present any evidence about the weather conditions – could not have posed a foreseeable physical risk to the students for such a short period of time. Even if the Panel had found that the students were sent out of the portable classroom without their coats, its conclusion in this case would have been the same; taking students out in the rain for no more than about 10 minutes when the temperature is clearly above 0°C cannot constitute physical abuse.

84Had the temperature reached, for example, -10°C, -15°C or even -20°C, the Member would certainly have exposed Student 1 and Student 2 to the danger of hypothermia. However, in this case, there is no evidence that would allow the Panel to conclude that there were any physical consequences for the students as a result of their short stay outside. The Panel is aware that Mr. Gauthier described the rain that day as “heavy precipitation” and that the students could have suffered from the cold in the heavy rain for about 10 minutes, but it was still incumbent on the College to demonstrate and convince the Panel of this on a balance of probabilities.

(d) The Member did not abuse a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

85The Panel is unable to conclude that the Member abused students psychologically or emotionally in contravention of Ontario Regulation 437/97, subsection 1(7.2).

86The College argues that the students’ account of what happened when Student 1 and Student 2 were sent out of the portable classroom is a question of fact and that it is for the Panel to decide whether this event constitutes psychological or emotional abuse. With respect, the College should have pursued its reasoning to its logical conclusion and presented evidence to convince the Panel that the Member’s sending these two students outside constituted abuse under subsection 1 (7.2). While the Panel can make a finding of law as to the nature of an alleged fact (i.e., characterize it), it cannot make a finding of law as to the consequences of that same fact in the absence of evidence. No evidence of the consequences or adverse effects of this incident on the students was introduced at the hearing. There was a risk, but it was hypothetical, so it is not immediately apparent to the Panel that psychological or emotional abuse must be found on the facts.

87Similarly, if the College had presented evidence that would have allowed the Panel to conclude that uttering the words “Shut up,” “You’re sick” and “You’re crazy” or telling students that they had demons in their heads had harmed the psychological or emotional well-being of the students, the Panel could also have found psychological or emotional abuse. In this case, there is also insufficient evidence – indeed, there was none – for the Panel to make such a finding.

88The same reasoning applies to the Justin Bieber videos that the Member showed to Grade [XXX] students. While these videos were clearly inappropriate, the onus was on the College to present evidence as to the effect that viewing these videos would have had on the students’ psychological or emotional well-being. All we know is that the students told the Member that they found the videos inappropriate, but that the Member continued to play them.

(e) 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)

89It is established that during his occasional teaching assignment on April 8, 2016, the Member did not adequately supervise students in a group of Grade[XXX] students. He spent a significant amount of time checking his cell phone rather than monitoring the class. This lack of supervision is confirmed by the evidence, which is reflected in the affidavit testimony of Cédric Bourgon and in the written statements of the students. The evidence also showed that there was a certain amount of disorder, that the students circulated as they wished and that equipment was strewn about the floor. It is also established by the evidence that on March 9, 2016, Student 1 and Student 2 were taken out of the portable classroom into the rain without supervision. In his testimony, Mr. Parent gave an example of adequate supervision as keeping a constant eye on the students, which was clearly not the case in these two events. It is clear that the Member did not have control over the groups he was supposed to supervise. He then forced two students out of the portable classroom and knowingly left them outside without supervision.

90The Panel therefore finds that the Member has contravened the provisions of Ontario Regulation 437/97, subsection 1(11).

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

91At the hearing, College Counsel argued that it would be more prudent to find a contravention of either subsection 1(5) or subsection 1(14) of Ontario Regulation 437/97, but not both, in order to avoid duplication. The Panel agrees. It is more appropriate to find a breach based on subsection 1(14) rather than subsection 1(5), as the Panel received no expert evidence of a breach of a professional standard. Subsection 1(5) refers only to the standards of practice of the profession, which must be explained by expert evidence, whereas subsection 1(14) allows the Panel to find a breach of the ethical standards set out in the by-laws without expert evidence.

92As explained above, the Panel heard testimony from Mr. Parent who was duly qualified as a participant expert. However, at the hearing, Mr. Parent spoke essentially not about the standards of practice of the profession, but about the standards of ethics, which are set out in sections 26.01 and 26.02 of the College’s by-laws, respectively. The Panel believes that the Member violated the standards of integrity and trust, particularly because of the inconsistencies that were identified during his discussions with management. The Panel agrees. The concept of integrity includes honesty. As noted above, the Panel believes that the Member was not completely honest in his statements during his interviews with management, which calls into question his integrity and undermines the trust that can be placed in him. His use of his cell phone while substituting, or his lack of candour about his use of his cell phone during class, also undermines that trust.

93The Panel also finds that the fact that he did not follow the lesson plan left by the classroom teacher and that he did not adequately fulfil his supervisory duties during this substitution also greatly undermines the trust that can be placed in the Member. It should be noted that a fellow teacher had to intervene in the [XXX] to help students and ensure their safety since the equipment storage area was not closed and there was equipment all over the floor. The concept of integrity also includes reliability. This same incident demonstrates that the Member did not act as a reliable occasional teacher who could be counted upon by the principal, the classroom teacher and even the students.

94The Panel also found that the Member was disrespectful when he threw Student 1 and Student 2 out of the room or yelled insults at Student 1. The Member also disrespected a group of Grade [XXX] students when he told them that he would have preferred to teach a group of Grade 11 students and that the students in the group had demons in them. The Member thus failed in his commitment to the well-being of students; he was supposed to honour the human dignity and emotional well-being of his students, which he clearly did not do.

95For all of these reasons, the Panel finds that the Member has breached the standards of empathy, respect, trust and integrity and therefore Ontario Regulation 437/97, subsection 1(14).

(g) 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)

96Clauses 264(1)(a) and (c) of the Education Act provide that a teacher shall both “teach diligently ... the subjects assigned to the teacher by the principal” and “inculcate by precept and example” a number of principles and virtues. The latter duty is generally understood to mean the teacher’s duty to act as a positive role model in fulfilling his or her ethical obligations. The Member’s conduct showed contempt for the students in his care by using inappropriate language, by failing to teach them with sufficient diligence and by pointing to the buttocks of young women dancing in a Justin Bieber music video, all of which are contrary to his duties under the Education Act. The Member also used his cell phone during a period when he was required to teach, did not follow the lesson planning left by the classroom teacher, and left no notes for the classroom teacher at the end of his occasional teaching assignment. Since most of this conduct took place in front of students, it is clear that the Member did not set a good example and should have behaved better or shown restraint.

97Accordingly, the Panel finds that the Member has contravened the provisions of Ontario Regulation 437/97, subsection 1(15).

(h) 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)

98The Panel is of the view that the Member’s conduct is shameful, dishonourable and unprofessional. The incident that casts serious doubt on the Member’s moral fitness, and is therefore disgraceful, is undoubtedly that of the video clips of two Justin Bieber songs, during which it was established that the Member had pointed to the buttocks of the dancers on the screen who were shaking their hips and buttocks (“twerking”). The Panel is particularly concerned that the Member did not have the presence of mind to realize that the videos were not appropriate for a Grade [XXX] class. Equally concerning is the fact that the students themselves described the videos as inappropriate in their written statements, but that the Member did not see anything wrong with them. The Panel expects a higher level of moral aptitude from a teacher who had approximately six years of experience at the time.

99The Member’s conduct is also dishonourable in that he was dishonest in his meetings with the principal in giving answers to questions that were contradicted by the evidence, including his use of cell phones in class. The Member also initially denied that the students had seen Justin Bieber’s music videos since they could not see the screen, only to admit that they had seen one, then two. These hesitations of the Member cast doubt on his sincerity and lend him dishonourable intentions.

100Finally, the Panel is of the view that the Member’s conduct was unprofessional as there were several incidents involving his lack of professional judgment. The Member had approximately six years of short-term teaching experience at the CECCE at the time. He should have been able to judge for himself that his actions were inappropriate, including pointing to the dancers’ buttocks in one of the video clips. Moreover, showing pop music videos is certainly not a wise use of a teaching period, especially since the students were supposed to be reading silently. The playing of these videos had the effect of agitating the students, even though the Member claims that his intention was to calm them down. In addition, rather than fulfilling his professional duties, such as ensuring adequate supervision of the students in his charge, he showed indifference to the students in the [XXX] class in which he was substituting. This does not include the inappropriate comments he made to Student 1.

101For all of these reasons, the Panel finds that the Member has contravened the provisions of Ontario Regulation 437/97, subsection 1(18).

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

102We recall that the Member made inappropriate comments to students, failed to supervise students in his care properly and played two video clips in class that had no pedagogical value, while ignoring the students’ protests. The Panel believes that such behaviour has the potential to damage the reputation of the teaching profession. The trust that parents, students and the public place in the teaching profession is undermined when teachers cannot be relied upon to provide adequate supervision and confidence that only appropriate instructional materials will be shown and taught to students.

(j) The Member displayed a lack of knowledge, skill or judgment and/or disregard for the welfare of his/her students of a nature or extent that demonstrates that the Member is unfit to carry out his/her professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

103The Committee received no evidence on this allegation of incompetence based on subsection 30(3) of the Act and therefore can make no findings of fact or law in this regard.

J. PENALTY

104The Tribunals’ Office will set a later date for the Panel to hear submissions from the parties on the penalty.

July 7, 2022

Marlène Marwah Chair, Discipline Panel

Jacqueline Boulianne, OCT Member, Discipline Panel

Myrna Tulandi Member, Discipline Panel

1The Panel can only assume that the masculine form of the word “enseignant” was intended and it is clear to the Panel that the reference here is to the classroom teacher (Mr. Raymond).

2R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9.