Ontario College of Teachers v. Rogers, 2022 ONOCT 74

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Rogers 2022 ONOCT 74

Date: 2022-07-17

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

Noel Garnet Rogers, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NOEL GARNET ROGERS (REGISTRATION #456637)

PANEL: Hanno Weinberger, OCT, Chair Lois Figg Wanda Percival, OCT

HEARD: July 14, 2022

Jordan Stone, for the Ontario College of Teachers Chris Reid, for Noel Garnet Rogers Rebecca Durcan, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on July 14, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Noel Grant Rogers (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of his reprimand as agreed to by the parties. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

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

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated December 7, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that Noel Garnet Rogers 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 abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(e) he 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);

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

C. STATEMENT OF UNCONTESTED FACTS

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

1. At all material times, Noel Garnet Rogers was a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. In the academic year 2017/2018, the Member stood behind a female student who was working on a car on a hoist in the auto shop. The student had her arms extended upwards as she held onto a tire on the car. The Member put his arms underneath her arms and grabbed the tire while standing very close behind her. The Member grabbed the tire for safety reasons, but invaded the student’s personal space while doing so.

4. In the academic years 2018/2019 and 2019/2020, the Member touched the hair of multiple students.

5. In the academic years 2018/2019 and 2019/2020, the Member grabbed multiple students by the waist in order to move them from one location to another.

6. In the academic years 2018/2019 and 2019/2020, the Member used students as “models” to demonstrate how to use certain equipment in class. In doing so, the Member touched students by the shoulder and waist to move them around as part of the demonstration.

7. In the academic year 2018/2019, during a one-on-one interview with a female student, the Member:

(a) took photographs of the student’s “selfie” assignment, which contained pictures of the student. The Member took the photographs to mark the student’s assignment, but did so using his personal cellphone and without the student’s permission or consent; and

(b) asked the student what mark she believed she should receive in his class. When the student told the Member a mark, he told her that he would give her that mark and she ultimately received the mark she requested.

8. In the academic year 2019/2020, the Member stood behind a female student who was working under a hoist in the auto shop. The Member stood so closely behind her that she could feel his stomach touching her.

9. In the academic year 2019/2020, the Member repeatedly swore and used profanity with students, including the words “fuck”, “motherfucker”, and “retard”.

10. The conduct described in paragraphs 3-9 caused one or more students to experience emotional or psychological upset or distress.

11. In the academic year 2019/2020, the Member violated health and safety requirements by failing to wear appropriate personal protective equipment (“PPE”) and failing to ensure a student under his supervision wore PPE in an environment containing safety hazards and machinery. In particular, the Member used a hammer to remove a piece of steel welded to a metal table without wearing any PPE. At the same time, a student used a welding gun in the Member’s presence without wearing any PPE.

PLEA OF NO CONTEST

12. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-12 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that paragraphs 3-12 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against him, being more particularly:

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

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

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

(d) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(e) he committed an act or 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);

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

14. By this document the Member states that:

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

(b) he understands that he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

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

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

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

(f) he understands that any agreement with respect to the penalty proposed does not bind the Discipline Committee; and

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

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

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

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on July 14, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(7.2), 1(11), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts at paragraphs 3 to 12 of Exhibit 2 constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that, on multiple occasions, the Member engaged in inappropriate conduct towards students, including making inappropriate comments to, and inappropriate physical contact with them.

8The Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97 by repeatedly swearing and using profanity with students, including the words “fuck”, “motherfucker”, and “retard”. As role models, teachers are expected to set a positive example for students and to always be respectful in their interactions with students. The Panel finds that the Member’s use of profanity with students was demeaning and disrespectful, and therefore amounts to verbal abuse.

9The Member abused students physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97. On multiple occasions, the Member made inappropriate physical contact with students. For instance, the Member touched the hair of multiple students and grabbed multiple students by the waist in order to move them from one location to another. The Member also used students as “models” to demonstrate how to use certain equipment in class. In doing so, the Member touched students by the shoulders and waist to move them around as part of the demonstration. Furthermore, the Member stood so closely behind a female student who was working under a hoist in the auto shop, that the female student could feel his stomach touching her. Additionally, the Member put his arms under another female student’s arms and grabbed a tire while standing very close behind her. The Member grabbed the tire for safety reasons but invaded the student’s personal space while doing so. Teachers must always maintain appropriate physical boundaries with students. By making unnecessary and unwanted physical contact with students and intruding on a student’s personal space, the Member violated students’ bodily integrity and therefore engaged in physical abuse of his students.

10The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. In addition to using disrespectful language and making inappropriate physical contact with students as described above, the Member also used his personal cellphone to take photos of a student’s “selfie” assignment which contained pictures of the student. The Member did so without the student’s permission or consent. Moreover, the Member asked the student which mark she believed she should receive in his class and ultimately gave her the marks that she had requested. The Uncontested Facts demonstrate that this conduct as well as the Member’s other abusive actions caused one or more students to experience emotional or psychological upset or distress. Members hold a unique position of trust and authority. It is psychologically or emotionally abusive to repeatedly fail to maintain appropriate professional boundaries with students, upsetting or distressing them. The Member’s conduct is therefore in clear breach of this provision.

11The Member failed to supervise adequately a person who is under his professional supervision, contrary to subsection 1(11) of Ontario Regulation 437/97. The Member failed to ensure that a student under his supervision wore Personal Protective Equipment (PPE) while holding a welding gun in an environment containing safety hazards and machinery. By doing so, the Member acted contrary to his professional obligation to adequately supervise his student and put the student’s safety at risk.

12The 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. Members must always maintain appropriate professional boundaries with students. By using disrespectful language and repeatedly making inappropriate physical contact with students as well invading a student’s personal space, the Member violated appropriate professional boundaries. Teachers must also prioritize the safety of students. The Member failed to do so when he violated health and safety requirements by not wearing appropriate PPE and failing to ensure that a student under his supervision wore PPE in a dangerous environment. Such conduct demonstrates significant moral and professional failings by the Member and can therefore be characterized as disgraceful, dishonourable or unprofessional.

13The Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. By repeatedly breaching appropriate professional boundaries with students and failing to supervise a student appropriately, the Member undermined the reputation of the teaching profession and breached the trust which students, parents and the public place in teachers.

F. PENALTY Decision

14The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 14, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter 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 5 months commencing on the 15th calendar day following the date of the Decision and the Order of the Discipline Committee relating to this matter;

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 date of the 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 boundaries with students, subject to the following conditions:

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

(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.

G. REASONS FOR PENALTY DECISION

15The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.¹ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Gulamhusein, 2019 ONOCT 101, Ontario College of Teachers v. Boyce, 2021 ONOCT 112, Ontario College of Teachers v. Bennett, 2021 ONOCT 107, and Ontario College of Teachers v. Baker, 2021 ONOCT 59.

16The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. Firstly, the Member’s misconduct spanned three academic years. Secondly, the Member’s misconduct was directed at several students. Thirdly, the Member’s conduct caused emotional or psychological harm to students. Finally, the Member put a student’s safety at risk by failing to ensure that the student wore PPE in an environment containing safety hazards and machinery. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing and saving students from having to testify, and he has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

17The Panel finds that the Member’s pattern of inappropriate conduct warrants a reprimand. Members must always maintain appropriate professional boundaries with students and provide a safe and supportive learning environment for students. The Member repeatedly failed to do so by making inappropriate physical contact and using profanity with students as well as by failing to adequately supervise a student. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

18Given the nature and severity of the Member’s misconduct, the Panel finds that a five-months suspension is reasonable and appropriate. 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 is justified. 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. In accordance with the parties’ joint submission, the Member’s suspension will begin on July 29, 2022, which is 15 days after the Panel’s Decision and Order.

19The Panel finds that the coursework regarding boundaries with students will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in all future interactions with students. The coursework will provide the Member with a clear understanding on how to maintain appropriate professional boundaries with students.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.```