DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Moss 2022 ONOCT 98

Date: 2022-10-25

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

Kirk Davyon Moss, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KIRK DAVYON MOSS (REGISTRATION #500174)

PANEL: Erin Durant, Chair

Andrew Glenny

Brian Serafini, OCT

HEARD: October 19, 2022

Jordan Glick, for the Ontario College of Teachers

Chris Reid, for Kirk Davyon Moss

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 October 19, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kirk Davyon Moss (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 February 14, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Kirk Davyon Moss is guilty of professional misconduct as defined in the Act in that:

(a) he failed to supervise adequately a person who was under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11);

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

(c) he failed to comply with s. 264(d) and/or s. 264.1¹ of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) he committed acts or omissions 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).

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, Kirk Dayvon [sic] Moss 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 Toronto District School Board as a teacher at [XXX] School (the “School”) as a teacher in a [XXX] school developmental disabilities classroom (the “Classroom”).

3. Due to the developmental disabilities of the students in the Classroom, the Member had established written routines for the students that were expected to be followed daily. Where adjustments to the established routines were made, students in the Classroom required preparation and proper support.

4. Student 1 was a [XXX]-year-old male student in the Classroom with a developmental disability.

5. On November 13, 2018, the Member interrupted the established routine of Student 1 by refusing to allow an educational assistant to give him a snack at the scheduled time in his routine. The change in routine agitated Student 1, leading Student 1 to assault and engage in physically aggressive behaviour towards educational assistants, a child and youth worker, and a teacher in the Classroom (the “Support Staff”), including punching and pulling the hair of various Support Staff.

6. While the Support Staff attempted to subdue Student 1, the Member:

(a) Remained seated in another part of the Classroom and took no steps to assist the Support Staff or to address the aggressive behaviour of Student 1;

(b) did not contact the School’s main office for assistance or support until asked to do so by another teacher;

(c) did not remove the other students in the Classroom to a safe location in a timely manner and only after being asked to do so by another teacher; and

(d) did not return to the Classroom to check on Student 1 or the Support Staff once other students in the Classroom were moved to a safe location.

PLEA OF NO CONTEST

7. 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 1-6 above (the “Uncontested Facts”).

8. The Member hereby acknowledges that paragraphs 5-6 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 failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

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

(c) he failed to comply with subsection 264(d) and section 264.1 of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) 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).

9. 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.

10. 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.

11. 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 College Counsel, the Panel rendered an oral decision on October 19, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(11), 1(14), 1(15) and 1(18).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 6 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 outlined at paragraphs 5 and 6 of Exhibit 2 constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that, among other things, the Member interrupted the established routine of a student with a developmental disability, and then failed to properly assist the Support Staff who attempted to subdue Student 1 after the student became physically aggressive.

8The Member failed to supervise adequately a person who is under the professional supervision of the Member, contrary to subsection 1(11) of Ontario Regulation 437/97. Supervision does not mean merely being present in class but it also requires teachers to take active steps to resolve situations that pose a risk to staff’s and students’ safety alike. By changing Student 1’s routine, the Member created a challenging situation in that the student became physically aggressive towards the Support Staff. Instead of taking steps to assist the Support Staff and address the aggressive behaviour of Student 1, the Member took a passive role. Notably, the Member did not remove the other students in the Classroom to a safe location in a timely manner. He did so, only after being asked to by another teacher. Moreover, the Member did not return to the Classroom to check on Student 1 or the Support Staff once the other students in the Classroom were moved to a safe location. Rather, the Member remained seated while the Support Staff addressed Student 1’s aggressive behaviour, and he did not contact the School’s main office for assistance until another teacher asked him to. The Panel finds that the Member’s inaction in the face of a serious classroom safety issue amount to a failure to supervise adequately the Support Staff and students under his supervision.

9The Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening the provisions of the College By-Laws, which set out the professional standards for the teaching profession. In particular, the Member breached the standards of practice of “Commitment to Students and Student Learning” and “Leadership in Learning Communities”. Members are required to demonstrate care and commitment to students. They must treat students equitably and with respect and are sensitive to factors that influence individual student learning (“Commitment to Students and Student Learning”). Members are also required to promote and participate in the creation of collaborative, safe and supportive learning communities (“Leadership in Learning Communities”). By interrupting the established routine of Student 1, the Member demonstrated a lack of commitment and sensitivity to Student 1’s needs, and in so doing, he also put the safety of others in his classroom at risk. Moreover, the Member’s inaction in the face of Student 1’s aggressive behaviour was antithetical to the expectation that members will establish safe and supportive learning communities.

10The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with subsection 264(1)(d) of the Education Act. Subsection 264(1)(d) provides that it is the duty of a teacher to assist in developing co-operation and co-ordination of effort among the members of the staff of the school. In addition to taking a passive role when Student 1 became aggressive towards the Support Staff as described above, the Member also failed to contact the School’s main office for assistance or support until asked to do so by another teacher. The Member thereby failed to cooperate with staff to manage a challenging situation in his classroom, which was the result of his ill-advised decision to change Student 1’s established routine.

11The Member committed acts which would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are required to use appropriate classroom management methods and demonstrate sound professional judgment when faced with challenging student behaviour, especially where students with developmental disabilities are involved. The Member’s mishandling of the situation at issue in this case demonstrated a significant lack of professional judgment.

F. PENALTY Decision

12The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 19, 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 2 months commencing on the 15th calendar day following the date of the Decision and the Order of the Discipline Committee relating to this matter. If the Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st;

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 classroom management with an emphasis on students with special needs, 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

13The 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.² 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. Carle, 2020 ONOCT 135, Ontario College of Teachers v. McColeman, 2019 ONOCT 109, and Ontario College of Teachers v. Barros, 2017 ONOCT 5.

14The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are: (1) the Member failed to meet the needs and properly support a student with a developmental disability and (2) the Member’s conduct put the Support Staff and other students in the Classroom at risk of harm. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing. The Panel considers as a neutral factor the fact that the Member 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.

15The Panel finds that the Member’s inappropriate conduct warrants a reprimand. Members are expected to demonstrate sound professional judgment and use appropriate classroom management methods when faced with challenging student behaviour. The Member’s inaction in the face of Student 1’s aggressive behaviour showed that he was either unwilling or unable to properly manage his classroom. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

16Given the nature and severity of the Member’s misconduct which had a negative impact on Support Staff and students’ safety, the Panel finds that a two-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 November 3, 2022, which is 15 days after the Panel’s Decision and Order.

17The Panel finds that the course of instruction regarding classroom management with an emphasis on students with special needs 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 any future interactions with students, especially those with developmental disabilities. The coursework should provide the Member with a sound understanding of how to handle challenging students’ behaviour in class, including de-escalating volatile situations, and maintaining structures and routines.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1During the hearing, in response to a clarification question from the Panel, the College submitted that it was proceeding solely on the basis of the subsection 264(1)(d) allegation and not the section 264.1 allegation. Member’s Counsel did not object to this narrowing of the allegations.
2. 2See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.