Ontario College of Teachers v. Milner, 2022 ONOCT 85

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Milner 2022 ONOCT 85

Date: 2022-08-26

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

James Douglas Milner, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JAMES DOUGLAS MILNER (REGISTRATION #270516)

PANEL: Wanda Percival, OCT, Chair Terrence Singh, OCT Lisa Tucker

HEARD: August 25, 2022

Yufei (Fiona) Wang, for the Ontario College of Teachers Valerie Wise and Victoria Tremblett, for James Douglas Milner Ahmad Mozaffari, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 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 August 25, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2James Douglas Milner (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

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

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated April 11, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that the James Douglas Milner is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

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

(c) 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);

(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).

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. James Douglas Milner is 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 Hamilton-Wentworth District School Board (the “Board”) as an elementary school teacher at [XXX]School (the “School”) in[XXX], Ontario.

Student 1

3. Between in or about September 2003 and in or about December 2005, Student 1 was a [XXX]year-old female student. The Member was Student 1’s Grade [XXX] [XXX]teacher in or about the academic year 2004-2005.

4. Between in or about September 2003 and in or about July 2006, the Member engaged in inappropriate communications of a personal nature with Student 1, including several written correspondence and hundreds of electronic communications via the Member’s personal email and MSN Messenger accounts. The Member emailed Student 1 almost every day and they exchanged messages for hours on MSN Messenger. Many electronic communications between the member and Student 1 occurred late at night and on weekends.

5. These communications contained inappropriate comments and contents, including but not limited to:

(a) On January 13, 2005, the Member wrote a “Happy [XXX]-Day” letter to Student 1 for her “[XXX]days.”

(i) The Member included two photos of Student 1;

(ii) The Member included a series of sequential numbers representing the number of days since Student 1’s birth and scribed Student 1’s age at each 365 numerical interval; and

(iii) At [XXX] days, the Member scribed the date as it was also his birthday.

(b) In a letter dated February 7, 2005, the Member wrote to Student 1, “I wanted to say something cute. Then maybe something profound and deep. Fuzzy kitty cats. Marianas Trench. Alright a little lame. Maybe a lot lame. But hopefully worthy of a smile. I’ll start again. No I won’t. I’ll keep this very short…I’m thinking about you, [Student 1]. Okay? And I’m here. Whenever, wherever.”

(c) In an email sent to Student 1 on Tuesday, March 15, 2005, at 7:38 p.m., the Member wrote, “You of course HAVE become a very special case. :p Don’t like the sound of that word! You know what I mean! You are special to me! In part, simply because of the time and opportunity. So… So… So for you I will try and be both what you need… and what I can. I guess.”

(d) Between May 10, 2005 and May 16, 2005, the Member wrote multiple notes to Student 1, including but not limited to”

(i) “I really think we should spend some time together.”

(ii) “Opened my email at school this morning. Nothing from you. :-( I knew it was coming but it was still weird. Or was it freaky?”

(iii) “But I have to think/hope that we have a lot more between us – and maybe you’ll consider doing other things [with] me.”

(iv) “I often don’t know how much to say or push (pull?) but I want to keep reminding you that… well… whatever, whenever.”

(v) “Is [XXX] good company? Is he keeping you safe? Is he reminding you of me? ;-) You wouldn’t be getting much time [with] him anyway. You know, thinking of him living [with] you now… do you think maybe I can get periodic updates of how he’s doing? You know, if he goes places [with] you…pictures… :-) or ;-)”

(vi) “Well I’ll say yet again in this letter, how about we spend sometime together? :-)”

(vii) “One of many questions you didn’t answer, I suspected it was a comfort thing – was the [sic] me really looking at you [sic] hand/wrist/arm. Remember? Will you let me do that?”

(viii) “Sometimes I wish I could see you… enjoy me more.”

(ix) “Sometimes though I seem like such a chore for you. Rarely but it still can be…”

(e) In a letter dated July 8, 2005, the Member wrote to Student 1,

(i) “Always, as long as you’ll have me. If you regret this, if you regret us then we should get it dealt with. You know full well that I’m in this for good… and for good.”

(ii) “We do need to talk. And you need to listen. You were supposed to have become okay with my caring. How much are you not telling me?”

(iii) “This is gradually going somewhere I’d prefer it not to. I’m losing sight of the end and the track itself.”

(f) In a letter dated December 11, 2005, the Member wrote to Student 1,

(i) “You know, I’ve worried, a few times, about my openness with my feelings towards you. It’s been important though, that you know I care. But it’s still a vulnerability.”

(ii) The Member quoted a dialogue from Brother Bear, an animated film. In an exchange between two brother moose, one moose says, “I love…dew” and the other one responds, “I love dew too.” This scene is to depict the brother moose’ love to each other.

(iii) “I wonder… when was the first time that I told you that I love dew. That goes back quite some time I think. Amazing how many little things could be hidden… were hidden.”

(g) In a letter dated June 13 [year omitted], the Member wrote to Student 1,

(i) “You have chosen to toss us aside. More forcefully than ever. It isn’t anger, or being caught up in the moment. It’s a choice.”

(ii) “Saying these things makes it sound like I’m trying to guilt you into feeling like you’ve negelected [sic] us… me. ME isn’t supposed to matter, right? I’ve never lost sight of that. You certainly HAVE neglected what you choose to call a friendship. Or maybe that was just the wrong word. Do you see me as a friend? Truly?”

(iii) “I don’t think you have ever really come to grips with the fact that I could devote myself so whole-heartedly to you. And the scary thing is, when it’s looking you right in the face, and it will likely hurt you, it will be so important for you to be able to say… ‘I meant THAT much to him? I DID. Wow.’

(iv) “Or maybe it’s because you thought ‘Enough’ in my secret message was about you rather than my dad. Or maybe you were just too uncomfortable saying something because how much US sucks right now.”

(v) “And remember, someone could even be going through what I have been and continue to devote themselves to YOU. Because you do deserve it.”

(h) In a letter dated June 24 [year omitted], the Member wrote to Student 1,

(i) “Hopefully next time when someone cares so much, you’ll give them more to go on. But you’d made it pretty clear that I’d become either useless for your good times, or dangerous for your bad.”

(ii) “A shame someone else is losing you. Worse I guess that they don’t know. You’re definitely worth keeping.”

(i) In a letter dated July 6, 2006, the Member wrote to Student 1, “I can appreciate you being tired of explaining us to people. I have had to face that too. My life and career are still threatened by it. And will continue to be. Hopefully explaining the end will be easier. For both of us.”

(j) Between in or about September 2003 and in or about July 2006, the Member wrote a handwritten letter to Student 1 with approximately 141 hug sign, “({)”, surrounding the content of the letter.

(k) Between in or about September 2003 and in or about July 2006, the Member gave a piece of paper to Student. On one side of the paper, the Member wrote, “IN CASE OF EMERGENCY!” One the other side of the pager [sic], it was a hug sign, “({)”.

6. Attached hereto and marked as Appendix “B” is a copy of sample correspondences from the Member to Student 1 between September 2003 and July 2006.

7. In or about 2005, the Member sent hidden messages to Student 1.

8. Between in or about February 2005 and in or about December 2005, the Member made and gifted 19 CDs to Student 1, including one for each month and three additional CDs for sleep, Christmas and Remembrance Day. Each CD has 12-20 songs and a customized insert note for Student 1. The insert notes contain inappropriate messages to Student 1, including but not limited to:

(a) The Member included a hidden message in a January 2005 CD insert notes by capitalizing letters in messages which spelled, “SHOW THEM WHAT YOURE [sic] MADE OF.”

(b) In the January 2005 CD insert note, under Hockey Song by Jughead, the Member wrote, “How could I not put in a song about HockeY [sic]? Of course if I had a song with [Student 1’s first name] in the title, it clearly wOUld [sic] have taken priority. We all know [Student 1] is more important than hockey.”

(c) In an October 2005 CD insert note, under Specialty by Howard Jones, the Member wrote, “You are, you know. And yes, you can.”

(d) In a November 2005 CD insert note, under Hands by Jewel, the Member wrote, “What one thing would you tell the world? Why? Reminds me of that horrible but enlightening thought experiment… Is there something that you haven’t told someone that you would regret forever if you lost the chance to tell them? And if so… why haven’t you told them? I don’t have many of those. I think. I try not to anyway. I do. And… ‘I do’”

(e) In a December 2005 Christmas CD insert note, under The Christmas Song by Maren Ord, the Member wrote, “Thought maybe it could be inspirational for you. Maybe make you break into song. ;-) Sing to me?”

(f) In a January 2006 CD insert note, under Leader of Men by Nickleback, the Member wrote “‘Give me lessons on how to breath, Cause I think I’ve forgotten.’ At the very least, I can’t hear that line without thinking about you.”

(g) In the January 2006 CD insert note, under One in A Million by The Mighty Lemon Drops, the Member wrote, “Would you do the vocals? ;-) :p I’m still working on a voice clip! Sing to me! With me!”

(h) In a March 2006 CD insert note as well as on the CD, the Member wrote, “I do, you know.”

(i) In an April 2006 CD insert notes, under the song Hold The Ice by Hans Zimmer, the Member wrote, “Soundtrack. I don’t now. I think perhaps this is yet another that’s on here more for me than you. I get the emotion from the part of the movie. You only get the music. I suppose we could watch them… ;-)”

(j) In the April 2006 CD insert notes, under the song April Skies by The Jesus and Mary Chain, the Member wrote, “These guys again? But it’s April! No message. Just April. I know what you mean to me. And…”

9. Attached hereto and marked as Appendix “C” includes photos of the CDs and some insert notes.

10. Between in or about June 2005 and in or about December 2005, the Member gifted Student 1 a series of seven books, Tomorrow, When the War Began. The Member included letters and wrote inscriptions inside each book cover. In a message dated December 2005, the Member wrote, “Hmmm. The easy… me! ‘I love dew’” and “I do, you know.” Attached hereto and marked as Appendix “D” includes photos of the books and the inscriptions inside some book covers.

11. In or about the 2005-2006 school year, the Member bought Student 1 a stuffed plush [XXX]which had a hug sign “(})”, written on an elastic band around it.

12. In or about the spring of 2005, during a lunch hour, the Member attended Student 1’s residence when Student 1 was off school sick and watched a television program with Student 1.

13. Between in or about September 2003 and in or about December 2005, the Member failed to report to the School administration and/or Student 1’s parents regarding concerns for Student 1’s health and well-being.

14. The Member’s conduct made Student 1 felt “uneasy” and “uncomfortable.” The Member regrets that his conduct made Student 1 feel uneasy and uncomfortable, and that his intention was to support, not harm, Student 1.

Student 2

15. In or around the academic year 2007-2008, Student 2 was a Grade [XXX] female student at the School.

16. Between in or about September 2007 and in or about December 2007, the Member approached Student 2 at her locker four or five times per week to speak with her at the end of the school day when he was supervising students in the hallway.

17. Between in or about September 2007 and in or about December 2007, the Member relayed an incident with Student 2 that on a previous field trip, female students and their teacher yelled “penis” to the male students on the trip.

18. Between in or about September 2007 and in or about December 2007, on multiple occasions, the Member watched and/or waved to Student 2 through the window of her classroom door while Student 2 was in a class not taught by him.

19. Between in or about October 2007 and in or about December 2007, the Member engaged in inappropriate communications of a personal nature with Student 2, including multiple written correspondence and electronic communications via the Member’s personal email account. Many electronic communications between the member and Student 2 occurred late at night and on weekends.

20. These communications contained inappropriate comments and contents, including but not limited to:

(a) When Student 2 asked the Member for help with math, the Member sent an email to Student 2 on Tuesday, October 2, 2007, at 10:03 p.m., stating, “I am at your service. You know that. Ask and my time…MY time is yours. It’s what I do. FOr [sic] you and lots of others. And in some cases especially for you. So… PLEASE PLEASE PLEASE let me get what I want… No that’s a song. PLEASE PLEASE PLEASE do not feel bad about asking for help.”

(b) In an email sent to Student 2 on Friday, October 12, 2007, at 12:30 a.m., the Member asked if Student 2 was “…sleeping well?”

(c) In an email sent to Student 2 on Saturday, October 20, 2007, at 12:56 p.m., the Member quoted a poem that was not related to Student 2’s schoolwork.

(d) In an email sent to Student 2 on Friday, November 2, 2007, at 9:00 p.m., the Member wrote, “But also… thank you. For trusting me to be there for you. And, I know I’ve said it before, and will say it again… but just for the privledge [sic]. You are a remarkable person. And I’m better for having got to know you more closely.”

(e) In an email sent to Student 2 on Sunday, November 11, 2007 at 2:48 p.m., the Member talked about going to a cenotaph with his daughter and stating, “It was nice to hear you say that you would have liked to come along.” The Member also stated that his daughter might ask Student 2 to accompany her and him to a planetarium and a movie theater.

(f) In an email sent to Student 2 on Monday, December 3, 2007 at 10:49 p.m., the Member forwarded an email chain that read, “Think about this for a min [sic]… If I happened to show up on your door step [sic] crying, would you care? If I called you and asked you to pick me up because something happened, would you come? If I had one day left, to live my life; would you be part of that last day? If I needed a shoulder to cry on, would you give me yours? This is a test to see who your real friends are or if you are just some one [sic] to talk to you when they are bored…send this to everybody on your list including the person who sent it to you. I just did…because you are my friend. If I don’t get this back I guess your [sic] not my friend.” The Member added, “FOr [sic] all these times I try to remind you that I do care…and you CAN ask… (and I know you’re just being a considerate person worrying about whether I should be coming in to school early ‘just’ for you) but let’s imagine for a moment that YOU asked ME those questions up there [referring to the above quoted email chain]… Yes, I would care. Yes, I would come. Yes, if you wanted me to (let’s not dwell on THAT one) and fina lly…Yes. I know YOU didn’t test me this time… but I think I still pass. Good person. My time is yours when you want it. I give it wholly, freely, and joyfully. (Did I get that right?)”

(g) In a letter dated December 9, 2007, the Member wrote to Student 2, “Forgettable? You are not. You are far from it. You are a wonderful individual. Like I said, I am richer for having known you. You are an excellent role model for me! ;-) Your kindness and thoughtfulness are exemplary. And that in and of itself, makes you not just not-forgettable (another one to re-read!) but, I’d venture to say… unforgettable too!”

(h) In an email sent to Student 2 on Monday, December 10, 2007, at 7:23 p.m., the Member asked if Student 2 was “sick?”;

(i) In an email sent to Student 2 on Tuesday, December 11, 2007, at 7:14 p.m., the Member sent an email stating, “HAVE A GREAT [XXX](not good luck) Look forward to hearing how you did!”

(j) In an email sent to Student 2 on Sunday, December 16, 2007, at 1:26 p.m., the Member asked if Student 2 was “stuck in[XXX]?!?” The Member sent this message because he knew Student 2 was in [XXX]for a [XXX]and a major snowstorm had hit the city.

21. Attached hereto and marked as Appendix “E” is a copy of sample correspondences from the Member to Student 2 between October 2007 and in or about December 2007.

22. The Member’s conduct made Student 2 feel “uncomfortable.”

23. The Hamilton Children’s Aid Society (the “CAS”) investigated the concerns regarding the Member’s communication with Student 2. On March 3, 2008, the CAS wrote to the Member that there was a lack of evidence to suggest that the Member had behaved in a manner at which caused risk to the student and that the CAS was not verifying any concerns. Attached hereto and marked as Appendix “F” is a copy of the letter from CAS to the Member dated March 3, 2008.

24. On or about April 7, 2008, the Board issued a letter to the Member. The Board found that the Member’s conduct towards Student 2 was inappropriate. The Member was suspended for five-days without pay. Attached hereto and marked as Appendix “G” is a copy of the Board’s letter to the Member dated April 7, 2008.

25. In or about September 2020, the Board became aware of the Member’s inappropriate communications with Student 1. Following a subsequent Board investigation, the Member resigned from the Board effective November 6, 2020.

Undertaking and Acknowledgement

26. On May 12, 2022, the Member signed an Undertaking and Acknowledgement resigning and agreeing not to seek reinstatement of his Certificate of Qualification and Registration. The Member further undertook not to seek or accept employment in any teaching position in any public or private school in Ontario, or in any other capacity for which an Ontario Certificate of Qualification and Registration is required. Attached hereto and marked as Appendix “H” is a copy of the Member’s Undertaking and Acknowledgement.

GUILTY PLEA

27. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-26 above (the “Admitted Facts”).

28. The Member hereby acknowledges that the conduct set out at paragraphs 4-14, 16-22 and 24-25 of the Admitted Facts constitutes professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19).

29. By this document the Member states that:

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

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’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;

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

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

30. In light of the Admitted Facts and circumstances and the plea of guilt, 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 Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on August 25, 2022 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 26 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that paragraphs 4-14, 16-22 and 24-25 of the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in a pattern of inappropriate communications and interactions with Student 1 and Student 2.

8The Panel finds that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Admitted Facts demonstrate that, among other things, the Member:

• engaged in and sent inappropriate communications to Student 1 and Student 2 of a personal nature, often at night or on the weekends and through written correspondence, as well as electronically through his personal email and/or MSN Messenger accounts;

• gifted Student 1 with CDs, and books, and a stuffed plush [XXX], all accompanied by notes or messages of an inappropriate nature;

• wrote to Student 1 asking or indicating that he wanted to spend time with her;

• attended Student 1’s residence during a lunch hour, in or about the spring of 2005, when Student 1 was off school sick and watched a television program with her;

• approached Student 2 at her locker four of five times a week to speak with her at the end of the school day;

• watched and/or waved to Student 2 through a window of her classroom door while she was in a class not taught by him.

9The Member was not equitable and fair-minded in his conduct towards students as required by the standards of “Commitment to Students and Student Learning”, “Trust” and “Respect”, having singled out and directed an excessive amount of attention to Student 1 and Student 2. Apart from the inappropriate personal nature of his communications (which included hidden messages to Student 1), the frequency with which he corresponded with Student 1 and Student 2, that he spent hours exchanging messages with Student 1, that he used a personal email and/or MSN Messenger to correspond with Student 1 and 2, and that he often communicated with them at night or on the weekends, all demonstrate a profound lack of professional judgment by the Member. He ignored his professional obligations with respect to maintaining appropriate student-teacher boundaries, going so far as to attend Student 1’s residence during a lunch hour when she was home from school sick and watched a television program with her. The Member’s repeated failures to exercise professional judgment in his conduct towards Student 1 and Student 2 was contrary to the ethical standard of “Care”.

10Moreover, he did not show care or commitment to Student 1 when he failed to report to School administration and/or Student 1’s parents regarding concerns for Student 1’s health and well-being. His failure to report such concerns was also a failure to uphold the “Trust” placed in him to ensure the welfare of Student 1, demonstrating a lack of reliability and morality in the fulfilment of his duties toward Student 1, contrary to the ethical standard of “Integrity”.

11The Panel finds that the Member psychologically or emotionally abused Student 1 and Student 2, contrary to subsection 1(7.2) of Ontario Regulation 437/97. Psychological or emotional abuse typically refers to behaviour that can seriously interfere with a student’s cognitive, emotional, psychological or social development. When student-teacher boundaries are crossed, they can have a traumatic impact on a student’s psychological and emotional well-being and development. The Member admits, and the Panel accepts that he psychologically or emotionally abused a student or students. Student 1 and Student 2 were in elementary school at the material time and the Member was in a position of trust and authority over them. He engaged Student 1 in highly inappropriate, personal and emotionally intense communications for a period of more than two years, during which time he also gave her numerous gifts (i.e., 19 CD’s made for her with personalized notes, some with hidden messages; a stuffed plush [XXX] with a hug sign written on an elastic band; and a series of seven books with personalized inscriptions). He also engaged Student 2 in inappropriate communications and boundary violations for a period of approximately 3 months in the 2007-2008 school year. The Agreed Facts clearly indicate the Member’s conduct had a negative impact on Student 1 and Student 2. Student 1 and Student 2 were both made to feel “uncomfortable” by the Member’s conduct. The Member’s conduct also made Student 1 feel “uneasy”.

12The Panel finds that the Member contravened Ontario Regulation 437/97, subsection 1(15) by failing to comply with section 264(1) of the Education Act. In particular, section 264(1)(c) requires teachers to “inculcate by precept and example … the highest regard for truth, … sobriety, … purity, temperance and all other virtues”, and is commonly understood as requiring teachers to set a good example for students. The duty to be a positive role model includes setting proper boundaries with students to maintain a professional relationship with them. It is incumbent on teachers to set proper boundaries, given the differential power they hold over students and their relative maturity. However, the Member repeatedly breached those boundaries with both Student 1 and Student 2. Moreover, he actively encouraged Student 1 to do so when he made comments to her including: “I really think we should spend some time together”; “But I have to think/hope that we have a lot more between us – and maybe you’ll consider doing other things [with] me”; “Well I’ll say yet again in this letter, how about we spend sometime together”; and “Sometimes I wish I could see you…enjoy me more”. He clearly did not exercise restraint in his conduct towards Student 1 and Student 2 and did not model appropriate student-teacher boundaries for them.

13The Panel finds that the Member engaged in acts that would be reasonably regarded as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member repeatedly ignored his professional duty to maintain appropriate student-teacher boundaries and to prioritize the well-being of his students. The Panel notes that the Agreed Facts indicate that the Member understood that conduct toward Student 1 was inappropriate, as demonstrated by his letter dated July 6, 2006, which stated: “I can appreciate you being tired of explaining us to people. I have had to face that too. My life and career are still threatened by it. And will continue to be. Hopefully explaining the end will be easier. For both of us.” Nevertheless, he continued to engage in inappropriate communications and conduct the next school year with Student 2. The Member’s continued misconduct was shameful and showed a flagrant disregard for his professional obligations. Furthermore, the Member’s failure to report concerns for Student 1’s health and well-being to the School administration and/or Student 1’s parents demonstrates significant moral and professional failings. The Member’s conduct can be characterized as disgraceful, dishonourable, or unprofessional.

14Finally, the Panel finds that the Member’s conduct as described above is unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19). Members of the teaching profession are expected to have the maturity to exercise good judgment and professionalism in their relationships with students. The Member’s numerous boundary violations and failure to report concerns about Student 1 diminishes the public’s trust in teachers and undermines the reputation of the teaching profession.

F. undertaking and acknowledgment

15On May 12, 2022, the Member entered into an Undertaking and Acknowledgement (Exhibit 2, Appendix H) with the College in which he agreed to the following terms:

1. I hereby resign as a member of the Ontario College of Teachers with immediate effect.

2. For greater certainty, I also undertake that I will never seek reinstatement of my Certificate of Qualification and Registration.

3. I undertake not to seek or accept employment in any teaching position in any public or private school in Ontario, or in any other position or capacity for which an Ontario Certificate of Qualification and Registration is required.

4. I understand that a breach of this Undertaking and Acknowledgement may constitute professional misconduct and that in those circumstances, the Ontario College of Teachers will be at liberty to institute proceedings against me.

5. I acknowledge that my status on the Public Register of the College will be "Cancelled - Resigned" and the notation will read as follows:

"On May 12, 2022, the Member resigned his Certificate of Qualification and Registration. The Member has undertaken not to reapply for reinstatement of her [sic] Certificate of Registration and Qualification."

6. I acknowledge my understanding the scope, purpose and effect of my execution of this Undertaking and Acknowledgment and am executing same voluntarily, unequivocally, and with the advice of legal counsel.

G. PENALTY DECISION

16The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 25, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers; and

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six months commencing on the 15^th calendar day following the date of the Decision and Order of the Discipline Committee in this matter, and the fact of the suspension is to be recorded on the Register.

H. REASONS FOR PENALTY DECISION

17The 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, in conjunction with the Member’s Undertaking and Acknowledgement to resign his certificate, 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. Porter, 2021 ONOCT 86; Ontario College of Teachers v. Defosse, 2021 ONOCT 41; Ontario College of Teachers v. Riley, 2019 ONOCT 61; and Ontario College of Teachers v. Lee, 2021 ONOCT 67.

18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct with Student 1 and that he engaged in similar misconduct with a second student. Additionally, the Member was aware of the inappropriateness of his conduct and communications with Student 1, and yet engaged in similar conduct with Student 2. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and sparing witnesses from having to testify at a contested hearing. After weighing these factors and considering the Member’s resignation of his Certificate of Qualification and Registration, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

19The Panel finds that the Member’s pattern of inappropriate conduct warrants a reprimand. Members are required to respect and maintain appropriate boundaries with students at all times and to make sure that concerns about students’ health and well-being are reported so they can be properly addressed. The Member repeatedly failed to exercise professional judgment in his communications and interactions with Student 1 and Student 2. 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.

20Given the nature and severity of the Member’s misconduct, the Panel finds that a six-month 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 September 9, 2022, which is 15 days after the Panel’s Decision and Order.

21The 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.