DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Bujacz 2023 ONOCT 12

Date: 2023-02-10

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

Lee Allan Bujacz, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LEE ALLAN BUJACZ (REGISTRATION #526770)

PANEL: Stéphane Vallée, OCT, Chair

Yasser Leheta, OCT

Kimberley Westfall-Connor

HEARD: September 13, 2021; October 6-7, 2021; January 19 and 21, 2022; April 8, 2022; and September 12, 2022

Andrew Matheson and Noam Uri, for the Ontario College of Teachers

Christopher Perri and Kylie Sier, for Lee Allan Bujacz

Ravi Amarnath and Emily Owens, for the Ministry of the Attorney General of Ontario (September 13, 2021 – only)

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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, or the person who was allegedly sexually abused or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

1This proceeding was originally set to be heard on November 24 and 25, 2020. It was adjourned on consent (with conditions) and rescheduled to proceed on May 20, 2021. On May 20, 2021, the Member brought a motion to adjourn the proceedings, and the adjournment was granted (with conditions). The hearing was again rescheduled to proceed on September 13, 2021, and October 6 and 7, 2021: Ontario College of Teachers v. Bujacz, 2022 ONOCT 2.

2On September 13, 2021, Lee Allan Bujacz (the “Member”) brought a motion, before the start of the hearing on the merits, concerning the timing of his legal challenge regarding the constitutionality of section 30.2 of the Ontario College of Teachers Act, 1996 (the “Act”). The motion was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“Rules”). The Panel decided the motion would be heard, if necessary, after the hearing on the merits and advised the parties that it would provide its reasons for this motion decision when it released its decision and reasons on the merits. The Panel held the hearing on the merits electronically on October 6 and 7, 2021; January 19 and 21, 2022; April 8, 2022; and September 12, 2022 in accordance with rule 8.01.

3The Member attended all of the hearing days and had legal representation throughout these proceedings.

4These are the Panel’s reasons on the motion regarding the timing of the Member’s constitutional question and its decision and reasons on the merits, in which the Panel finds that the Member is guilty of professional misconduct for behaviour which included his consumption alcohol while on a field trip in October 2014; his comments to students about rape, vaginal tearing during childbirth, and miscarriage in the 2014-2015 academic school year; and his exchange of electronic messages of an inappropriate personal nature with a student in or around March 2017. Based on this conduct, and for the reasons that follow, the Panel found that the Member contravened subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel also found that the Member engaged in sexual abuse of a student as defined in section 1 of the Act. The Panel did not, however, find that the Member engaged in sexual misconduct as defined in section 1 of the Act (given the College’s withdrawal of that allegation) or that the Member contravened subsection 1(11) of Ontario Regulation 437/97, due to insufficient evidence.

A. PUBLICATION ban

5The Panel ordered a publication ban pursuant to subsection 32.1(3) of Act, which makes such an order mandatory. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 2, who was under 18 years of age at the time of the hearing, or her mother, who testified in this proceeding and whose identity could reveal the identity of Student 2.

6Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, who was allegedly sexually abused or the subject of sexual misconduct. The publication ban also applies to Student 1’s mother, who also testified in this proceeding, so as to avoid identifying Student 1. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 1 or her mother.

B. PReliminary issue: motion on timing of constitutional question

7In his Notice of Motion dated August 30, 2021, the Member sought:

1. An order that the Act, in particular sections 30.2(1), 30.2(2), 30.3, and 33(4.1), when read together with the definition of “sexual abuse” and “student” in section 1 of the Act, violates section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”) in a manner that cannot be saved under section 1 of the Charter.

2. An order that in light of the section 2(b) infringement, the impugned provisions are unconstitutional and as a result of section 52 of the Constitution Act, 1982, the Discipline Committee will treat the impugned provisions as having no force and effect.

3. Any further and other orders that counsel may advise and the Discipline Committee may permit.

8The College opposed the motion and asked the Panel for an order that:

1. The constitutional motion will not be heard in advance of the hearing on the merits;

2. The constitutional motion shall only be heard if (a) the penalty phase is reached, (b) the Member has been found guilty of sexual abuse of a student, and (c) the College and the Ministry of the Attorney General of Ontario are given adequate time to respond to the constitutional motion;

3. The Member does not have standing to challenge section 30.3 of the Act;

4. The College’s right to ask the Panel to award costs associated with the constitutional motion is preserved.

9The Ministry of the Attorney General of Ontario (the “Intervenor”) was an intervenor in this motion and also opposed the motion. The Intervenor asked for an order that the Discipline Committee not address the constitutional challenge unless the Member is found guilty of sexual abuse and subject to the mandatory revocation provisions under the Act.

10The Panel was advised at the outset of the motion proceedings that the parties’ submissions would be limited to the timing (and not the substance) of the Member’s constitutional question.

(1) Member’s Position

11Member’s Counsel agreed with the College and the Intervenor that there is a general principle in law that Charter decisions should not be made in a factual vacuum¹ because the outcome of Charter challenges can have a profound impact on all Canadians and future matters. However, the Member submitted that this principle is less of a consideration in Charter challenges before administrative tribunals because an administrative tribunal’s decision on the constitutionality of a legal provision applies only to the particular case before them. The Committee cannot make sweeping declarations of invalidity that would be binding on future cases.

12Moreover, the Member is challenging the purpose of the mandatory penalty provisions in the Act, and whether they are justified under section 1 of the Charter. While challenges to the constitutionality of the effects of a piece of legislation must be accompanied by a proper foundation of “adjudicative facts”, challenges to the purposes of legislation can be heard before a hearing of the merits.² The Panel has been provided, in the Member’s motion record, with all the pertinent facts to determine the Member’s constitutional challenge, namely the LeSage Report³ and Hansard debates about why the impugned provisions were enacted by legislature.

13Member’s Counsel submitted that it is appropriate to hear the Member’s motion challenging the constitutionality of the legislation before holding a hearing on the merits and as a preliminary motion.⁴ The constitutional motion would not require a significant amount of time and could be heard in one hearing day without live witnesses. Further, deciding the Member’s constitutional challenge at the outset will afford the Member procedural fairness and natural justice, will allow him to better prepare his case and present his defence, and will therefore allow for a more efficient hearing. If the Panel decides, in advance of the hearing on the merits, that the mandatory revocation provisions are constitutional and enforceable, then it will be unnecessary for the Member to adduce evidence during the hearing about the context in which the electronic messages were sent, his intentions when sending them, or other mitigating factors that could affect the Panel’s decision on penalty because the Panel would have no discretion in revoking the Member’s certificate. However, if the Panel decides to hear the constitutional challenge only after a hearing on the merits, the Member will not have certainty about the penalty that would be imposed for a finding of sexual abuse and would have to adduce evidence about mitigating factors in case the Panel ultimately decides the mandatory revocation provisions are unconstitutional and that it does have discretion with regard to penalty. It would be a less efficient and less favourable way to proceed in the latter manner.

(2) College’s Position

14The College acknowledged the Member’s right to bring a constitutional challenge but argued that the motion was premature. The mandatory revocation provisions are penalty provisions and will only be engaged if the Panel finds that the Member sexually abused a student. It is speculative and hypothetical whether the Panel will make such a finding and the Member’s motion will be unnecessary if the Committee is not satisfied that the sexual abuse allegation has been proven. It is not appropriate to make determinations about constitutional issues when it is not necessary to do so because the issue has not yet occurred or may become moot.⁵

15According to College Counsel, it is important for a reviewing court to have a complete record of relevant facts⁶ and both adjudicative facts (i.e., the facts of the particular case) and legislative facts (e.g., policy documents, Hansard debates, etc.) are required when determining constitutional challenges.⁷ Adjudicative facts are especially relevant in the administrative law context because an administrative tribunal’s ruling on a constitutional challenge applies only to the case in question. Administrative tribunals do not have the authority to make general declarations of invalidity under section 52 of the Constitution Act, 1982.⁸

16According to College Counsel, the cases the Member provided in support of his motion are not comparable to the particular circumstances of the Member’s case and are not helpful for the Panel in deciding this motion. None of the cases the Member relied on challenged the constitutionality of a penalty prior to a hearing on the merits. Taken to their highest, they carve out exceptions to the general rule requiring a full, factual record when challenging the constitutionality of the allegations made against an individual.

17The penalty of mandatory revocation for findings of sexual abuse of a student by a member is not self-evidently unconstitutional. The Panel will need to hear evidence on the facts of the case to determine whether the mandatory penalties are disproportionate to the Member’s conduct. As an analogy, mandatory minimum penalties in the criminal law context are heard at the sentencing stage.⁹

18College Counsel disagreed with the Member’s suggestion that the motion could be dealt with in one day and submitted that efficiency favours deferring the constitutional question until after the finding stage of the hearing. The Panel can order revocation as a discretionary penalty for engaging in professional misconduct even if they do not find the Member guilty of sexual abuse. The constitutionality of the mandatory revocation provisions has no bearing on the Member’s ability to call evidence during the finding stage of the hearing and does not impair the Member’s right to a fair hearing.

19College Counsel submitted that the Member had no standing to challenge section 30.3 of the Act.¹⁰ The College also noted that the Member failed to comply with the requirements in rules 5.06 and 5.07 of the Rules to file affidavit evidence in support of his motion, questioned the basis for the motion in light of prior adjournments, and submitted that the hearing should proceed without further delay.

(3) Ministry of the Attorney General of Ontario’s Position

20Counsel for the Intervenor submitted that the minimum starting point for the Member’s challenge is an actual order by the Panel applying the impugned mandatory revocation provisions, namely an order finding the Member guilty of sexual abuse of a student. If the Member is not found guilty of sexual abuse, then it will be unnecessary for the Discipline Committee to decide the constitutional issue.

21Counsel for the Intervenor submitted that courts should avoid determining constitutional issues unless necessary because unnecessary constitutional pronouncements may prejudice future cases.¹¹ Any determination by this Panel, while not binding, will be persuasive authority for other panels of the Discipline Committee. Further, if the Panel’s decision is appealed, the Divisional Court will have to rely on the record that was before the Panel, which is presently very thin.

22According to the Intervenor, the Panel should wait until after the hearing of the merits to consider the Member’s Charter challenge. The findings the Panel make will help determine whether revocation is a proportional response or minimally impairing in the circumstances.¹² The Supreme Court of Canada considers the absence of a factual basis for constitutional challenges to be a “fatal flaw”.¹³

(4) Independent Legal Counsel’s Advice

23Independent Legal Counsel (“ILC”) advised the Panel that the preponderance of the law supports the position of the College and the Intervenor. The Supreme Court of Canada has set out that, as a general rule, there should be a factual basis before bringing a constitutional challenge and adjudicators should not deal with issues, in particular constitutional questions, that are unnecessary to dispose of a case. ILC noted that the Member has not challenged the definition of sexual abuse but is challenging the penalty for a finding of sexual abuse. ILC advised that it would not be efficient to deal with the constitutional challenge as a preliminary matter, because the Panel may decide after hearing the evidence that the Member is not guilty of sexual abuse. ILC also reminded the Panel that it is authorized to order revocation as a discretionary penalty, even if the mandatory provisions did not apply or are determined to be unconstitutional.

(5) DECISION ON MOTION

24On September 13, 2021, having considered the submissions of the parties and the Intervenor, and ILC’s advice, the Panel declined to hear the Member’s motion before a finding of sexual abuse, if any, was made.

(6) REASONS FOR DECISION ON MOTION

25The Panel accepted the advice of ILC that the law supports the positions of the College and Intervenor, and that the Supreme Court of Canada has established a general rule in Mackay and Danson that constitutional challenges should not be considered in a factual vacuum. The Panel accepted that there are rare exceptions to the requirement that a tribunal must have the full factual context before deciding a constitutional issue but did not consider the Member’s case to fall under such an exception.

26The Panel recognized that it cannot make sweeping declarations of invalidity and that its decision on the constitutionality of the impugned provisions will only be binding upon the Member. However, as the Intervenor noted, the Panel’s decision will still become persuasive precedent for the Discipline Committee and other regulators going forward. The Panel agreed with Justice Cory’s statement in Mackay that, “[i]n light of the importance and the impact that [Charter] decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases” (at paragraph 8).

27The Panel was not persuaded that it could rely on legislative facts alone to determine the Member’s constitutional question. The Panel agreed with College Counsel that the cases provided by the Member were not helpful. These cases were all instances where the issue was the constitutionality of allegations made against an individual. The Member was not challenging whether it is unconstitutional to find a member guilty of sexual abuse for engaging in behaviour or making remarks of a sexual nature toward a student. Rather, he was challenging the constitutionality of the penalty that follows such a finding.

28The Panel found that the Member’s motion was premature. At the time of the motion, the Panel had not yet determined whether the Member had engaged in sexual abuse of a student. Section 30.2 of the Act therefore had no application to the Member at that point in the proceedings. The motion was not necessary to determine whether the Member was guilty of the allegations against him, and the Supreme Court of Canada has said that adjudicators should not consider issues that are not necessary for the disposition of a matter, especially constitutional issues:

This court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of [a matter]. This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist. (Phillips at paragraph 6)

29Moreover, the challenge would be moot if the Panel ultimately decided that the allegation of sexual abuse had not been proven. A finding that the Member engaged in the sexual abuse of a student is a necessary foundation for the application of the mandatory penalty provisions in the Act. As the Supreme Court of Canada found in Mackay, “the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to [the Member’s] position” (at paragraph 21).

30Additionally, the Panel was not persuaded by the Member’s arguments about efficiency, fairness, and natural justice. There is no denial of justice by proceeding with a hearing on the merits first. Revocation is an order available in all discipline cases following a finding of professional misconduct. The Member faced the possibility of revocation, regardless of any finding of sexual abuse, and should have fully prepared and presented his case with that understanding. The Member had all the procedural rights afforded to him and the right to bring his motion at the appropriate time following a hearing on its merits and a finding that the Member has engaged in sexual abuse of a student.

31Now that the Member has been found to have engaged in the sexual abuse of a student, he may proceed with his constitutional challenge, and the Panel will have the facts underlying that finding to determine whether mandatory revocation would be disproportionate to the conduct and therefore not justified under section 1 of the Charter. If required, the Panel may also consider the Member’s standing to challenge section 30.3 of the Act now that the merits of the Member’s case have been heard. The College’s right to seek costs for the constitutional motion is preserved.

32In the reasons that follow, the Panel sets out why it found the Member guilty of professional misconduct.

C. THE ALLEGATIONS

33The allegations against the Member in the Notice of Hearing dated July 22, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Lee Allan Bujacz 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(e) he engaged in sexual misconduct as defined in section 1 of the Act;¹⁴

(f) 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);

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

(h) 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);

(i) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Lee Allan Bujacz is a member of the Ontario College of Teachers.

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

3. At all material times, Student 1 was a Grade [XXX] female student at [XXX]School, in[XXX], Ontario. Student 1 was a former student of the Member.

4. On or about October 27, 2014, the Member:

(a) left students unattended during a field trip;

(b) consumed alcohol while on a field trip.

5. In or around the 2014-2015 academic year, the Member:

(a) made inappropriate comments about rape to a student and/or students in his Grade [XXX] class;

(b) told a student and/or students in his Grade [XXX] class words to the effect of, “sometimes when women have babies, their vaginas tear and they require stitches”;

(c) told a student and/or students in his Grade [XXX] class about his [XXX]’s miscarriage.

6. In or about March 2017, the Member exchanged electronic messages of an inappropriate personal nature with Student 1 including but not limited to:

(a) telling Student 1 “ur bf must love that ur smart and normal”;

(b) telling Student 1 “u make me smile”;

(c) telling Student 1 “Awake or Netflix talk play???”;

(d) telling Student 1 “How's ur nite u have some high needs lol”;

(e) telling Student 1 “How can one b happy if they don't know ur a beautiful young woman with a plan u need to know what u would waste ur time for in a man there are many great ones out there”.

D. THE MEMBER’S PLEA

34The Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

(1) College’s Evidence

35The College presented oral and documentary evidence to prove the allegations set out in the Notice of Hearing including the testimony of nine witnesses: Ms. Kerri Fowlow; Student 2 and her mother (“Ms. 2”); Ms. Caroline Labelle¹⁵; Student 1 and her mother (“Ms. 1”); Mr. Jim Roberts; Dr. Donaleen Hawes; and Police Constable Greg Cox. Relevant portions of this evidence will be described in greater detail in the Panel’s reasons for decision below. The following is a brief summary of the evidence heard by the Panel.

(a) Kerri Fowlow

36At the time of hearing, Ms. Fowlow was a teacher with 25 years of teaching experience. During the 2014-2015 school year, Ms. Fowlow was a part-time French Immersion teacher at [XXX]School in[XXX]. She shared a classroom and students with the Member that school year.

37Ms. Fowlow could not recall whether there was a teacher in charge on the day of the school trip to Saunders Farm or what supervision arrangements had been made when she and the Member left to pick up a pizza at lunch time. She testified that she had observed the Member consuming alcohol while waiting for the pizza to be prepared. She further testified about the impact of the Member’s actions on her both at the time of the event and its continued impact at the time of the hearing.

(b) Student 2

38At the time of the hearing, Student 2 was a [XXX]-year-old Grade [XXX] student. During the 2014-2015 school year, she was around [XXX] years old and in the Member’s Grade [XXX] [XXX]class at [XXX]School in [XXX].

39Student 2 testified that there had been discussions about rape, vaginal tearing during childbirth and miscarriage in the Member’s class during the 2014-2015 school year. Student 2 testified that the comments made her feel scared and confused and that she spoke with her mother about them. Student 2 testified that some of the comments continue to negatively impact her at the time of the hearing.

(c) Ms. 2

40Ms. 2 is Student 2’s mother. She testified that in and around February 2015, Student 2 was[XXX] years old and in Grade[XXX]. The Member was one of Student 2’s primary teachers that academic year.

41Ms. 2 testified that there were a few occasions that year when Student 2 had become upset at bedtime as a result of hearing the Member make comments in class about rape, miscarriage, and vaginal tearing during childbirth. Ms. 2 advised Ms. Labelle about what Student 2 told her (Tab 7 of Exhibit 2). Ms. 2 described her shock at and disappointment in the Member’s conduct and testified that Student 2 continues to be fearful of having a baby because of the Member’s comments.

(d) Ms. Caroline Labelle

42At the time of the hearing, Ms. Labelle was the principal of Holy Name of Mary Catholic School in Almonte. She was a teacher for eight years and has been an administrator for the past 18 years. She has worked with the Member at several schools in the past, including during the 2014-2015 school year, when Ms. Labelle was the principal at [XXX]in[XXX].

43Ms. Labelle testified about her investigations of the allegations concerning the Member’s conduct during the trip to Saunders Farm in October 2014 and the comments the Member made to his Grade [XXX] class in 2014-2015. She also provided her opinion as to the impropriety of the Member’s alleged conduct on those occasions.

(e) Student 1

44At the time of the hearing, Student 1 was [XXX] years old. The Member had been her primary teacher in Grades [XXX] and had also taught her [XXX]. The Member was close friends with and a neighbour to Student 1’s grandparents. He knew Student 1’s family for many years and had known her for most of her life.

45Student 1 testified about the Facebook messages the Member sent her in March 2017 when she was a [XXX]-year-old Grade [XXX] student. Student 1 testified about her reactions to the Member’s messages at the time, and how she considered the messages to be inappropriate as they contained innuendo and insinuations of wanting to pursue a sexual encounter with her. Student 1 also testified about the continued negative impact the messages have on her.

(f) Ms. 1

46Ms. 1 is Student 1’s mother. She recalled that the Member was Student 1’s teacher in Grade [XXX] and possibly Grade[XXX].

47Ms. 1 testified that, in March 2017, Student 1 told and showed her that the Member had been messaging her (Student 1) on Facebook (Tab 1 of Exhibit 2). Ms. 1 testified that she thought the messages were highly inappropriate and reported the Member’s conduct to Student 1’s principal. Ms. 1 spoke about the negative impact the messages had on Student 1 at the time of the events, and their continued effect on Student 1.

(g) Mr. Roberts

48Mr. Roberts was the principal at the school at which the Member was working in March 2017. Mr. Roberts was a teacher for 13 years before becoming a school administrator and retiring in 2019.

49Mr. Roberts testified about the meeting the Member had on April 21, 2017 with him, Dr. Hawes, and the Superintendent of Human Resources (Tab 3 of Exhibit 2) about the allegations that the Member had engaged in inappropriate electronic communications with Student 1. Mr. Roberts testified that, sometime after the meeting, the Member indicated that he believed his phone (from which the electronic communications to Student 1 were sent) had been hacked.

(h) Dr. Donaleen Hawes

50On consent of the parties, Dr. Hawes was tendered as a participant expert regarding the standards required of teachers, including their conduct in the classroom, on school trips, and when communicating with students outside of the school. College Counsel reviewed in detail Dr. Hawes’ qualifications and advised that Dr. Hawes was involved in the investigation of the Member’s conduct at issue in these proceedings.

51The Panel accepted Dr. Hawes as a participant expert and was satisfied that she had the special skill, knowledge, training and experience to give opinion evidence based on her observation of or participation in the events at issue.¹⁶ Dr. Hawes has had a long and varied career in the education field, earning her teaching certificate in 1978 and a PhD in Educational Psychology in 1984. She has teaching experience, obtained qualifications in Religious Education (which covered the [XXX]program) in 1990 and 2003, has experience as a principal and was the Superintendent of Education for the Catholic District School Board of Eastern Ontario from 1999 to her retirement in 2019. She became a registered psychologist in 1985 and has worked in private and educational settings with a focus on child and adolescent development and educational support.

52Dr. Hawes testified about her investigations into the allegations that the Member left his class during the trip to Saunders Farm; consumed alcohol while picking up pizza from a local restaurant during the field trip; made inappropriate comments to his Grade [XXX] class; and sent inappropriate Facebook messages to Student 1. In Dr. Hawes’ opinion, the Member failed to adhere to the standards of the profession on each of these occasions.

(i) Police Constable Greg Cox

53Police Constable Greg Cox (“Officer Cox”) has been a police officer with the Ontario Provincial Police since 2013, and prior to that, was a police officer with the Town of Perth since 1999. Officer Cox was on general patrol in [XXX] in 2017.

54Officer Cox testified about his meeting with the Member on April 6, 2017, regarding the Facebook messages sent to Student 1.

(2) Member’s Evidence

55The Member testified on his own behalf during the hearing but did not call any other witnesses.

(a) Member

56The Member received his certificate of qualification and registration in February 2008 (Exhibit 6). Since that time, he has taught elementary students at several schools in the Catholic District School Board in Eastern Ontario.

57The Member testified about each of the incidents alleged in the Notice of Hearing. He acknowledged that he had consumed alcohol on the day of the school trip to Saunders Farm. He acknowledged discussing rape and miscarriage at school and stated that he would “own” having spoken about vaginal tearing to students. He also testified about his understanding of the Facebook messages Student 1 received. The Member noted that he was not disciplined by the Board for any of these incidents and that the discipline letters dated November 15, 2017 before the Panel, which reference these incidents, were issued in relation to different events (Exhibit 2 at Tab 4 (original discipline letter) and Tab 5 (revised discipline letter reflecting reduced suspension)).

F. SUBMISSIONS OF COLLEGE COUNSEL

58The College sought to withdraw the allegation that the Member engaged in sexual misconduct as defined in section 1 of the Act. College Counsel submitted that the Facebook messages in question constitute sexual abuse of Student 1, rather than sexual misconduct. Further, while the inappropriate comments the Member made about rape, miscarriages, and vaginal tearing during childbirth meet the definition of “sexual misconduct”, that definition was not in force at the time of the events in question. College Counsel submitted that the remaining allegations set out in the Notice of Hearing were proven, on a balance of probabilities, and that the Panel ought to accept the evidence of the College witnesses, who College Counsel submitted were all credible.

59College Counsel reminded the Panel that they heard from Dr. Hawes who was qualified as a participant expert on the standards required of teachers, including their conduct in the classroom and on school trips, and when communicating with students outside of the school. Dr. Hawes testified that the Member breached the expectations set out in the College’s Professional Advisory: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct approved by Council September 27, 2002 (Tab 17 of Exhibit 2) and Professional Advisory: Use of Electronic Communication and Social Media approved by Council on February 23, 2011 (Exhibit 5), and that he failed to maintain the professional and ethical standards of the teaching profession.

60College Counsel submitted that Dr. Hawes was not qualified as an expert in the area of sexual abuse. As such, the Panel should not be influenced in their determination of whether the Member engaged in sexual abuse by Dr. Hawes’ testimony that she did not find the Member’s Facebook comments to be overtly sexual and therefore did not report to the College that the Member engaged in sexual abuse. Additionally, while Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”), typically requires the parties to provide expert evidence on the standards of the profession, sexual abuse is one example of conduct that is so egregious that expert evidence is not required.

61College Counsel argued that the Member was not a credible witness. There were several instances where the Member failed to alert the College’s witnesses of his intention to call contradictory evidence, as required by the rule in Browne v. Dunn. For example, Member’s Counsel did not put to Ms. Fowlow that he anticipated the Member to testify that the teacher in charge had sent the Member to get pizza on the day of the Saunders Farm field trip. Similarly, Member’s Counsel did not put to Ms. Labelle that he anticipated the Member to testify that he had discussed the rape comment with her prior to their meeting with Dr. Hawes and that it was in fact a student who had made the comment and who was suspended as a result. According to College Counsel, the Panel should not accept the Member’s evidence on these points because Ms. Fowlow and Ms. Labelle were not given an opportunity to respond to the Member’s anticipated evidence during their cross-examinations.

62College Counsel submitted that the Member lied under oath about his interaction with the police in relation to the Facebook comments incident, when he repeatedly testified that the police looked at his phone. The Member’s testimony was contradicted by Officer Cox who testified that he never looked at the Member’s phone as he did not have a search warrant to do so. The Member also tried to give a favourable account of his meeting with the Board on April 21, 2017 by saying that he never acknowledged sending the Facebook messages to Student 1. Mr. Roberts’ and Dr. Hawes’ testimony contradicted the Member’s version of events. College Counsel also suggested that the Member’s inability to recall certain details, which he attributed to unspecified medical issues, were convenient, self-serving falsehoods.

63College Counsel provided the Panel with several cases for their consideration in determining whether the Member’s Facebook messages constitute sexual abuse as defined in the Act. The College provided the Panel with: Ontario College of Teachers v. Walker, 2022 ONOCT 29 (“Walker”); Ontario College of Teachers v. Maloney, 2018 ONOCT 13 and 2018 ONOCT 53; Ontario College of Teachers v. Salhani, 2021 ONOCT 132; Ontario College of Teachers v. Klassen, 2019 ONOCT 85; and Ontario College of Teachers v. Kindratiuk, 2020 ONOCT 171. The College also provided the Panel with Ontario College of Teachers v. Keenan, 2020 ONOCT 144 in support of its position that the Member engaged in professional misconduct.

G. MEMBER’s SUBMISSIONS

64The Member acknowledged that he made various errors in judgment, and that his conduct fell below the standards of the profession in some of the alleged incidents (i.e., the comments regarding vaginal tearing during childbirth).

65Member’s Counsel submitted that no Browne v. Dunn issues arose as there are no material facts in dispute and the Member was a credible witness. The Member was forthright and conceded points where it was appropriate to do so. Further, while the Member was mistaken about having shown the police his phone, this is not necessarily an indication that he is an unreliable witness. As the Divisional Court noted in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC), “Discrepancies in a witness’ testimony, or between his testimony and that of others, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience and innocent misrecollection is not uncommon.” Member’s Counsel submitted that even if the Panel disregards the Member’s evidence, they would be hard-pressed to find that the Member engaged in the professional misconduct alleged by the College.

66Member’s Counsel agreed that Novick confirms that expert evidence is generally required to prove a breach of the standards of the profession in disciplinary hearings, and submitted that expert evidence is required to prove any alleged breach of standards under both subsection 1(5) and 1(14) of Ontario Regulation 437/97.¹⁷ Member’s Counsel further submitted that that the Panel should only reject the expert opinion if there is a rational foundation in the evidence to do so.¹⁸

67According to Member’s Counsel, Dr. Hawes’ initial opinion about whether the Member had breached the standards of the profession were based on too fragile a factual basis and should be given little or no weight. Dr. Hawes changed her opinion as to whether the Member had breached the standards during the trip to Saunders Farm when it was suggested to her that there was a teacher in charge who made supervision arrangements that day, that the Member did not become intoxicated by the beer he consumed, and that there were no parents or students at the restaurant to see the Member drinking the beer. Dr. Hawes also changed her opinion about whether the Member had breached the standards with respect to the comments about rape and miscarriage when it was suggested to her that the Member had been responding to student comments and inquiries in class. Member’s Counsel submitted that the Panel should accept the Member’s version of events and Dr. Hawes’ revised opinions to conclude that the Member did not engage in professional misconduct during any of those incidents.

68Member’s Counsel submitted that clear and cogent evidence is required to prove that conduct amounts to “sexual abuse” and that the Facebook messages are not overtly sexual and are ambiguous. Member’s Counsel argued that the Panel should find that the Member did not engage in sexual abuse of Student 1, which is consistent with the conclusions of Dr. Hawes and the Board. The two professional advisories which Dr. Hawes spoke about are not determinative as to whether the Member engaged in sexual abuse, as they make reference to conduct that is inappropriate for teachers but not necessarily sexual in nature. Member’s Counsel submitted that the Panel could conclude the Member engaged in inappropriately personal boundary violations contrary to subsections 1(5), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97 but not sexual abuse as defined in section 1 of the Act and contrary to subsection 1(7.3), nor psychological or emotional abuse.

69Member’s Counsel referred the Panel to the following cases in support of the Member’s position: Ontario College of Teachers v. Clements, 2016 ONOCT 11; Ontario College of Teachers v. Lepage, 2017 ONOCT 29; Ontario College of Teachers v. Bowers, 2018 ONOCT 42; and Ontario College of Teachers v. Dean, 2018 ONOCT 66.

H. REPLY OF COLLEGE COUNSEL

70College Counsel disagreed that the Panel should accept Dr. Hawes’ opinion that the Member’s conduct did not amount to sexual abuse of a student. Dr. Hawes was not qualified as an expert on the definition of sexual abuse. While she did not report sexual abuse at the time, she had relied on the Superintendent of Human Resources to take whatever action was required in the circumstances. College Counsel argued that Molodowic, which was decided before Westerhof,did not apply to a participant expert in civil, disciplinary proceedings. Further, College Counsel submitted that the factual evidence supports, on a balance of probabilities, a finding that the Facebook messages are sexual in nature. Student 1 provided compelling evidence of what she understood the messages to convey, and Dr. Hawes testified that it was a reasonable perception that the comments were sexually inappropriate.

I. ADVICE OF INDEPENDENT LEGAL COUNSEL

71ILC advised the Panel that the Divisional Court in Novick stated that the Discipline Committee cannot create the standards of the profession. Rather, a panel must generally be provided with external evidence, usually in the form of an expert witness or published standards which identify the standards of practice of the teaching profession and how they have been breached.

72ILC distinguished the practice standards from the ethical standards in the College by-laws. ILC advised that breaches of practice standards are most appropriately addressed under subsection 1(5) of Ontario Regulation 437/97 whereas the ethical standards are appropriately considered as a breach of subsection 1(14) of Ontario Regulation 437/97, and that expert evidence is not usually required to prove breaches of ethical standards.

73ILC reminded the Panel that Dr. Hawes opined that the Member failed to maintain the standards of the profession with respect to the trip to Saunders Farm , the comments in class about rape, miscarriage and vaginal tearing, and the Facebook messages. Further, the Member admitted that his conduct fell below the standards with regard to most, if not all of those issues. ILC also noted that Dr. Hawes was not qualified to give opinion evidence on whether certain conduct was sexual in nature, but was nevertheless an expert relied upon by the College. If the Panel finds that the messages are sexual in nature, contrary to Dr. Hawes’ opinion, they should provide thorough reasons for disagreeing with her.

74ILC advised that the Panel can determine whether the Facebook messages were sexual in nature without expert evidence, in accordance with the Supreme Court of Canada’s decision in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 (“Chase”). The Panel can apply the test articulated in Chase and decide whether a reasonable observer would find that the comments were sexual in nature, in light of all the circumstances.

75In ILC’s opinion, there are no Browne v. Dunn concerns in this case. ILC advised that the rule in Browne v. Dunn only arises when a witness gives testimony that contradicts an earlier witness’ testimony and the second version of events was not put to the earlier witness so that they could agree or disagree with it. ILC advised that it is not necessarily inconsistent or contradictory if a witness simply does not remember if something happened or not.

J. DECISION ON FINDING

76Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student or students as defined in section 1 of the Act.

77The Panel accepts the College’s withdrawal of the allegation that the Member engaged in sexual misconduct as defined in section 1 of the Act and makes no finding with respect to this allegation.

78The Panel finds that the College has not proven, on a balance of probabilities, that the Member failed to adequately supervise a person who is under his professional supervision, contrary to subsection 1(11) of Ontario Regulation 437/97.

79As required by subsection 30.2(1)(b) of the Act, the Panel makes an interim order directing the Registrar to suspend the Member’s certificate of qualification and registration until the Panel makes its order on sanction.

K. REASONS FOR DECISION

80The College is required to prove the allegations in the Notice of Hearing on a balance of probabilities.¹⁹ In the reasons that follow, the Panel first sets out its factual findings and then explains why these facts give rise to findings of professional misconduct. The Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing.

81The Panel also recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ evidence to accept, the Panel can consider the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence.²⁰ The Panel can also determine credibility based on logic, common sense, and its experience.

(1) Factual Findings

(a) Findings re: Particular 4 of Exhibit 1 – Trip to Saunders Farm

82The Panel finds that the College has proven on a balance of probabilities that the Member consumed alcohol while on a field trip on or about October 27, 2014 but not that the Member left students unattended during that same field trip.

83The Panel heard evidence regarding the field trip from Ms. Fowlow and the Member. As well, the Panel heard testimony from Ms. Labelle and Dr. Hawes about their meetings with the Member regarding what transpired during the field trip.

84There is no dispute that the Member consumed alcohol at a local restaurant during the lunch hour as he waited for a pizza that he was to take back for students. Ms. Fowlow testified that she observed the Member consuming alcohol and reported this to Ms. Labelle the next day because she felt uncomfortable with the Member’s actions. Ms. Labelle, Dr. Hawes, and the Member were consistent that the Member admitted this to Ms. Labelle and Dr. Hawes during their respective discussions with him about the incident. Most importantly, the Member admitted during the hearing that he had consumed three quarters of a beer while waiting for the pizza. Accordingly, the Panel is satisfied that particular 4(b) has been proven on a balance of probabilities.

85On the other hand, the witnesses differed in their understandings and recollections of the supervision arrangements at lunch. The Member testified that all the students, teachers, and parents attending the field trip were in a large, tented area together during lunch, and that the teacher in charge had made supervision arrangements for his class while he went to pick up a pizza with Ms. Fowlow.

86Ms. Fowlow could not recall whether there had been a teacher in charge on site at the farm in place of Ms. Labelle, who remained at the School, and testified that she was unaware of what supervision arrangements had been made for the Member’s students while he left to pick up the pizza.

87Ms. Labelle also could not recall if there had been a teacher in charge on site at the field trip that day. She testified that Ms. Fowlow told her that the Member had left his students under the supervision of a parent or parents before going to get the pizza. Ms. Labelle did not recall whether she had raised the issue of supervision when she met with the Member about his conduct during the field trip (Tab 9 of Exhibit 2).

88Dr. Hawes testified that she did not think the Member had made appropriate arrangements for supervision prior to leaving the farm. Dr. Hawes testified that the Member did not advise her that there was a teacher in charge on site who could approve his leaving his students at lunch, or that there were other teachers on the trip that day who could supervise his students while he was away. In her email to Superintendent Nicole Proulx dated November 14, 2017, summarizing her meeting with the Member about this incident, Dr. Hawes noted that the Member, “said that he left the students unattended” (Tab 15 of Exhibit 2). However, Dr. Hawes did not witness the events at the farmherself and the reliability of her evidence on that point is diminished given the inconsistency between her testimony at the hearing and her notes of what the Member told her during their meeting on February 13, 2015 (i.e., “he left his students with another teacher” (Tab 12 of Exhibit 2)). The Panel places more weight on Dr. Hawes’ notes, which were made contemporaneously to her investigation, over her testimony at the hearing several years after the incident.

89In the absence of consistent evidence directly contradicting the Member’s version of events, the Panel is not satisfied that the College has proven that the Member left his students unattended during a field trip. Accordingly, the Panel finds that the College has not proven particular 4(a) on a balance of probabilities.

(b) Findings re: Particular 5 of Exhibit 1 – Inappropriate comments to Grade [XXX] class

90The Panel finds, on a balance of probabilities, that in or around the 2014-2015 academic year, the Member made inappropriate comments about rape, vaginal tearing, and miscarriage to students, as alleged. The Panel heard evidence about these comments from Student 2, Ms. 2, Ms. Labelle, and Dr. Hawes but bases its findings largely on the Member’s admissions during the hearing.

91The Panel believes that the College’s witnesses gave their honest, best recollections of the events in question. However, Student 2, the College’s only witness to directly hear the comments about rape, vaginal tearing, and miscarriage, was unable to recall the details of how the topics were raised or what the Member said exactly. Student 2 did recall that the discussions were not part of the lesson on those particular days. She also testified that the discussions made her feel scared that she might suffer a miscarriage or die from vaginal tearing during childbirth in the future, and that she felt confused as to whether she might go to jail for rape. Ms. 2’s testimony confirmed that Student 2 was upset after hearing from the Member about his [XXX]’s miscarriage and learning that women can suffer vaginal tearing during childbirth, and that Student 2 asked her what rape was and whether she could go to jail. However, Ms. 2 admitted that she was not clear from speaking with Student 2 how those topics arose or whether what Student 2 shared were the Member’s exact words in class.

92In this context, the Panel places great weight on the Member’s admissions with respect to this particular. The Panel notes that Ms. Labelle and Dr. Hawes both testified that the Member admitted during their meeting with him on February 13, 2015 that he had made statements about miscarriages, vaginal tearing during childbirth, and rape. They both testified that the Member told them that it was a student who had brought up rape in class. Dr. Hawes further testified that the Member told them that he confirmed his [XXX]’s miscarriage to a student who had asked about it after hearing an announcement about the miscarriage at church, and that he had meant to give his students personal examples so that they would be able to relate to the [XXX]program (Tab 12 of Exhibit 2).

93Most significantly, the Member admitted during the hearing that he had discussed rape, miscarriage, and vaginal tearing with students. He testified that he spoke to students about his [XXX]’s miscarriage when they asked him about it after hearing an announcement about the Member’s loss at church. The Member said it was an innocent conversation but admitted that the topic was too mature for the students and that he could have made better choices when he addressed them. While the Member could not recall what specific comments he made with respect to vaginal tearing during childbirth, he said he would “own” having discussed vaginal tearing. The Member also acknowledged discussing rape in class but testified that the discussion arose in response to a student saying that his hockey team “got raped” at a game. The Member testified that he did not discuss in detail what rape was but told the student not to use that word because rape is a bad thing and illegal and directed his students to speak with their parents. The Member acknowledged that rape, miscarriage, and vaginal tearing were not part of the Grade [XXX] [XXX]curriculum but suggested that more students would have complained if the comments were seriously concerning and noted that he did not receive Board discipline in relation to the comments.

94Given the Member’s admissions, the Panel finds that the College has proven on a balance of probabilities that the Member told students in his Grade [XXX] class words to the effect of “sometimes when women have babies, their vaginas tear and they require stitches” and also told students in his Grade [XXX] class about his [XXX]’s miscarriage.

95With respect to comments about rape, the Panel accepts the Member’s testimony that the topic was not raised by him and arose in response to a student’s comment or question. However, having considered the clear, convincing, and credible evidence of Student 2 and Ms. 2 that the Member’s comments had a significant negative impact on Student 2, causing her to become upset at bedtime and terrified that she might go to jail (see also Tab 7 of Exhibit 2), the Panel finds that the Member’s discussion of rape was not done in an appropriate manner. The Panel did not hear any evidence to suggest that Student 2 was particularly sensitive or vulnerable and did not think Student 2 and Ms. 2 exaggerated their evidence of the impact the comments had on Student 2. The Panel is of the view that Student 2 would not have been left as confused and distressed as she was if the Member had a cursory discussion in class and responded to the hockey student’s comment in a manner that was developmentally appropriate for Grade [XXX] students. As such, the Panel finds, on a balance of probabilities, that the Member made inappropriate comments about rape to his Grade [XXX] class.

(c) Findings re: Particular 6 of Exhibit 1 – Facebook messages to Student 1

96The Panel finds on a balance of probabilities that in or about March 2017, the Member exchanged electronic messages of an inappropriate personal nature with Student 1 as alleged. In making this finding, the Panel reviewed the copy of the message exchange (Tab 1 of Exhibit 2) and considered the testimonies of Student 1, Ms. 1, Mr. Roberts, Dr. Hawes, Officer Cox, and the Member.

97The Panel finds that the College’s witnesses were generally credible and reliable in their testimonies with respect to this allegation. There was no evidence to suggest that any of the witnesses were motivated to fabricate or embellish their evidence. They were clear and consistent in their recollections with respect to the core aspects of the allegations.

98The Panel notes that Ms. 1 did not have a clear recollection of whether the Member had been taken away by police, but the Panel did not think she was an unreliable witness and is of the view that Ms. 1 made an honest mistake, not having observed the Member’s interaction with the police herself. It was not a deliberate attempt to mislead the Panel and is a peripheral detail. The Panel notes that Ms. 1 had strong negative feelings about the Member’s conduct but recognizes that her reactions are understandable as Student 1’s mother and given her perceptions about the impropriety of the Member’s messages to Student 1. The Panel did not find her reactions diminished her credibility.

99Dr. Hawes had some difficulty when she tried to explain the conclusions she had drawn at the time of her investigation of the Facebook messages. The Panel does not agree with her characterization that the Facebook messages do not constitute sexual abuse. However, the Panel accepts that Dr. Hawes provided clear evidence on the chronology of events and what happened during her meetings with Student 1 and the Member, and that her recollections of the meeting with the Member on April 21, 2017 were corroborated by Mr. Roberts’ testimony.

100On the other hand, the Member’s evidence regarding the Facebook messages was inconsistent and confusing, which led the Panel to find that his testimony with respect to this allegation was not credible. The Member denied sending the Facebook messages but did not maintain this position consistently. At various times throughout his testimony, the Member stated that he was unaware of sending the messages to Student 1, but he did not dispute that he did because he had no proof otherwise; that he was taking ownership for the messages; and that he did not recall sending the messages, possibly because of several changes to his medication in the past few years. In saying this, he seemed to acknowledge the possibility that he indeed sent messages to Student 1, although he denied wanting to meet with or have a sexual relationship with her.

101At the same time, the Member suggested that he could not have sent the messages because his medication made him fall asleep by 10:30 p.m. However, he did not provide the Panel with evidence about the medication he was taking at the time of the messages or at the time of the hearing.

102The Member also suggested the messages are poorly written, as if they were written by someone who was not fluent in English. The Member said that he does not know what some of the message mean.

103The Member insisted there had only been two messages between him and Student 1 (i.e., where he congratulated Student 1 after she messaged him to advise that she had gotten into a [XXX]program) and that he was shocked when Dr. Hawes read out the Facebook messages in question to him during their meeting on April 21, 2017. The Member claimed that he showed this two-message exchange to Officer Cox during their meeting April 6, 2017. However, Officer Cox testified that he did not look at the Member’s phone that day as he did not have a search warrant to do so, and the Member did not show him any messages at all. Further, Student 1 testified that the Facebook messages at Tab 1 of Exhibit 2 from the Member at 11:38 p.m. on March 23, 2017, asking her “How’s life” was the first correspondence she had with the Member. The Panel has no reason to doubt the credibility of Officer Cox or Student 1 and does not accept the Member’s two-message version of events given its numerous concerns about the Member’s credibility regarding the Facebook messages.

104The Member also suggested his phone may have been hacked but, because he no longer has his phone to prove this, was willing to accept a finding by the Panel that he sent the Facebook messages to Student 1. Mr. Roberts testified that the Member approached him sometime after the April 21, 2017 meeting, indicating that he believed his phone had been hacked and that he (Mr. Roberts) relayed this information to Dr. Hawes. However, the Member did not consistently maintain this version of events as the Board’s November 2017 discipline letters issued only a few months later (in relation to different events but which make reference to the Facebook messages) do not mention any indication from the Member that the messages were not sent by him (Tab 4 and 5 of Exhibit 2). The Panel finds that, if it were the case that the Member truly believed his phone had been hacked, he would have persisted in raising the issue with his union and the Board.

105Furthermore, the Member’s assertion that he never accepted sending the messages to Student 1 is contradicted by both Dr. Hawes and Mr. Roberts, and the discipline letters issued against him on November 15, 2017. The Panel is not persuaded by the Member’s suggestion that Dr. Hawes and Mr. Roberts are mistaken in their recollections of what transpired in their meeting with him on April 21, 2017. Mr. Roberts and Dr. Hawes both testified that the Member initially denied sending the Facebook messages to Student 1, but eventually accepted that he had sent the messages to her and agreed that the messages were inappropriate and unprofessional. The November 2017 discipline letters noted that at the April 21, 2017 meeting with the Board, the Member “initially denied sending the communications but then acknowledged that they had occurred and that they were inappropriate and unprofessional” (Tab 4 and 5 of Exhibit 2).

106All of these inconsistencies cast significant doubt on the Member’s credibility with respect to the Facebook messages. The Panel was not satisfied that these were “innocent misrecollection[s]” as suggested by Member’s Counsel. It was the Panel’s view that these inconsistencies were significant, selective, uncorroborated, and established a self-serving pattern of unreliability that diminished the Member’s credibility with respect to this allegation.

107The Panel reviewed the screenshots of the Facebook messages and notes that they were sent from an individual who used the profile name “Lee Bujacz” and whose profile picture appears to be the Member with a baby. It seems more plausible to the Panel that the Member did send the messages and acknowledged during the April 21, 2017 meeting that he sent the messages to Student 1, and is now trying to provide alternative accounts to the Panel that are more favourable to him (i.e., that he does not remember sending the messages and that his phone may have been hacked).

108The Panel further notes that the Member agreed during the hearing that the messages were sent late at night; were of a personal nature, ambiguous, and open to a sexually suggestive interpretation; and were inappropriate. The Panel accepts the ample evidence it heard from those who viewed the Facebook messages, and agrees with them, that the messages were inappropriate. Student 1 understood the messages as attempts by the Member to probe her age and whether she had a boyfriend, and she understood the Member to be making sexual innuendo and insinuations of wanting to pursue “some type of sexual encounter” with her. Ms. 1 testified that she “instantly” felt sick to her stomach when she read the Facebook messages because she felt that the Member was “grooming” and “preying on” Student 1. Dr. Hawes testified that she thought the Facebook messages constituted professional misconduct.

109For all of these reasons, the Panel finds it more likely than not that the Member sent inappropriate, personal Facebook messages to Student 1 and that the College has proven particular 6 on a balance of probabilities.

(2) Legal Conclusions

(a) No finding that the Member engaged in sexual misconduct as defined in section 1 of the Act

110The College withdrew the allegation that the Member engaged in sexual misconduct as defined in section 1 of the Act. The Panel recognizes that the definition of sexual misconduct was not in force at the time that the Member made the inappropriate comments about rape, miscarriage and vaginal tearing to his Grade[XXX] class. The definition of sexual misconduct does not apply with retrospective effect. Therefore, the Panel finds that the College’s withdrawal of this allegation is appropriate and accordingly makes no finding of sexual misconduct in this case.

(b) No finding that the Member failed to supervise adequately a person who was under his professional supervision, contrary to subsection 1(11) of Ontario Regulation 437/97

111The Panel does not find that the College has proven, on a balance of probabilities, that the Member failed to supervise adequately a person who was under his professional supervision, contrary to Ontario Regulation 437/97, subsection 1(11). The College presented insufficient evidence to prove that the Member left his students without adequate supervision when he left with Ms. Fowlow to pick up pizza on the day of Saunders Farm field trip. Further, the Panel did not hear evidence to support a conclusion that the Member was impaired by the beer that he consumed at lunch, such that he did not provide adequate supervision for his students during the remainder of the trip upon his return from the restaurant to the farm.

(c) The Member engaged in professional misconduct

112The Panel finds that the Member’s conduct set out above gives rise to findings of professional misconduct. In particular, the Panel finds that the Member engaged in acts of professional misconduct, as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19). The Panel also finds that the Member engaged in sexual abuse of a student as defined in section 1 of the Act.

(i) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)

113The Panel finds that the Member failed to maintain the standards of the profession. The Panel accepts that Novick reinforced the principle that the College should present expert evidence on the standards of the profession and breaches thereof unless the conduct is so notorious or obvious that expert evidence is not required. In this case, the Panel accepted Dr. Hawes as a participant expert, qualified to provide evidence on the standards required of teachers’ conduct in the classroom and on school trips, as well as when communicating with students outside of the school.

114In Dr. Hawes’ opinion, the Member breached the standards of the teaching profession when he consumed a beer in a public establishment during the lunch hour while on a school trip. Dr. Hawes testified that the standards for the teaching profession do not specifically prohibit members from consuming alcohol during their own time. Further, she agreed with Member’s Counsel’s suggestion that it is not a breach of the standards for teachers to drink a light beer during their lunch break, when that was not in the presence of students or parents, and without becoming intoxicated. However, viewing the entire context and circumstances, Dr. Hawes considered the Member to have breached the standards of the profession by compromising the trust that parents have in his professionalism.

115The Panel agrees with Dr. Hawes that the standards to do not specifically prohibit teachers from consuming alcohol. The standards of practice “articulate the goals and aspirations of the profession”, “convey a collective vision of professionalism” (Tab 16 of Exhibit 2), and do not prescribe when teachers can and cannot consume alcohol. However, the Panel understands Dr. Hawes’ evidence as speaking to the requirement for teachers to uphold practice standards including “Leadership in Learning Communities” and finds that the Member’s conduct fell below that standard.

116The Member consumed alcohol in a restaurant during the lunch hour while on a school trip, shortly before returning to supervise and care for students. It is possible that people who knew the Member as a teacher could have been in the restaurant. Certainly, his actions were witnessed by another teacher, Ms. Fowlow, who testified that she felt very uncomfortable with his actions and worried that other people in the restaurant might recognize them to be teachers and question why they were there during the day. Ms. Fowlow testified that she became and continues to be angry with the Member for putting her in the compromising position of being associated with his drinking during the day. The Panel finds that Ms. Fowlow’s reactions confirm Dr. Hawes’ opinion that the Member did not maintain the trust underlying his relationship with the public.

117Dr. Hawes also testified that the Member’s conduct fell below the standards of the profession when he made inappropriate comments about mature and upsetting topics on three separate occasions to his Grade [XXX] class. The substance of Dr. Hawes’ evidence was that the Member failed to show dedication in his care and commitment to his Grade [XXX] students as he was insensitive to factors that influence individual student learning (as required by the practice standard “Commitment to Students and Student Learning”); failed to use appropriate pedagogy in responding to his students (as required by the practice standard “Professional Practice”); and failed to promote and participate in the creation of a safe and supportive learning community, and to uphold the ethical standards of the profession (as required by the practice standard “Leadership in Learning Communities”).

118The Panel accepts Dr. Hawes’ opinion that the Member breached the standards of practice for the teaching profession, as described above. It was incumbent on the Member to adhere to the spirit and content of the prescribed [XXX]curriculum and to have considered his students’ sensitivities when addressing mature topics relating to sexual health, sexual violence, and reproduction (especially because this was their first exposure to such topics at school). He should have been reflective about the pedagogical techniques used to respond to students, showed sensitivity to his students, and ensured a safe and supportive learning community. He failed to adhere to these obligations when he discussed rape, miscarriage, and vaginal tearing during childbirth with Grade [XXX]students. His conduct caused Student 2 to feel scared, confused, distraught, and unable to sleep at night.

119The Panel also agrees with Dr. Hawes that the Member’s conduct fell below the standards of the profession when he sent the Facebook messages at issue to Student 1. The practice standard “Professional Knowledge” requires members to be current in their professional knowledge and recognize its relationship to practice. The Member did not adhere to guidelines for appropriate conduct by members set out in the College’s Professional Advisory: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct approved by Council September 27, 2002 (Tab 17 of Exhibit 2) and Professional Advisory: Use of Electronic Communication and Social Media approved by Council on February 23, 2011 (Exhibit 5).

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

120The Panel finds that the Member verbally abused Student 1 and Student 2, contrary to subsection 1(7) of Ontario Regulation 437/97. In making this finding, the Panel notes that it was not provided with a definition of verbal abuse but has considered the inappropriate nature and impact of the Member’s various comments made to Student 1 and Student 2 as a person in a position of trust and authority over them.

121The Panel finds that the Member’s numerous inappropriate comments to his Grade [XXX] class demonstrate a pattern of harm to the students in that class, and in particular to Student 2. The Member held a position of trust and authority over Student 2, and was entrusted with her care, well-being, and development. Rape is a horrific concept for persons of any age, and it is reasonable that Grade [XXX] students could become distressed by thinking that someone might experience this type of sexual violence. Similarly, the Panel finds that it is reasonable that Grade [XXX] students, especially female students, would become scared after learning about vaginal tearing. Given their relative immaturity, young students may not be able to discern and contextualize the Member’s comments. In this case, the Panel heard convincing evidence from Student 2 and her mother about the significant, lasting, negative impact these comments had on Student 2. Student 2 not only felt confused, scared, and distressed at the time of the comments, but continues to be fearful of having a baby, as a result of the Member’s comments.

122The Panel finds that the Member’s Facebook messages to Student 1 were also verbally abusive. The Facebook exchange was initiated by the Member, and while Student 1 sent messages in response, the vast majority of the messages were from the Member. In fact, Student 1 testified that she did not want to continue the exchange after she had received the message, “How’s ur nite u have some high needs lol”. The Member then continued to try to engage Student 1 even when she was not responsive. For example, the messages “U still up” and “Still here” suggest to the Panel that the Member was prompting Student 1 for her response.

123The Panel finds that the Member exploited his prior relationship with Student 1 as her former teacher and a family acquaintance, to engage her in unwanted, inappropriate communications containing sexually suggestive comments and profanity (e.g., “Sorry fucking phone”). The Member either disregarded or did not realize how the messages could impact Student 1 (Student 1 testified that the messages made her feel “weird”, “gross, disgusting, and not good”) and the messages he sent to Student 1 therefore amount to verbal abuse.

(iii) The Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)

124Having considered the evidence about the long-lasting detrimental impact that the Member’s conduct had on Student 1 and Student 2, the Panel finds that the Member psychologically or emotionally abused Student 1 and Student 2. Psychological or emotional abuse is characterized as behaviour that can seriously interfere with a child’s cognitive, emotional, psychological, or social development.

125The Panel accepted Student 2 and Ms. 2’s evidence that the Member’s comments made Student 2 feel distraught at the time they were made. The Panel accepted that the Member’s comments led to Student 2 feeling confused about whether she might go to jail for rape and scared that she might experience a miscarriage in the future or die from vaginal tearing during childbirth. The Panel also accepted Student 2’s evidence that she continued to be uncomfortable with the topics of miscarriage and vaginal tearing, and is scared of having a baby, because of the Member’s comments, even years later at the time of the hearing.

126Similarly, the Panel accepted Student 1’s evidence that the Member’s Facebook messages “weirded” her out and made her feel “gross, disgusting and not good” at the time they were made. The negative impact that the Member’s messages had on Student 1 was confirmed by Ms. 1 and Dr. Hawes. The Panel accepted Dr. Hawes’ evidence that Student 1 appeared very distraught and anxious during their meeting about the Facebook messages on April 19, 2017 (Tab 13 of Exhibit 2) and that Student 1 told her that the messages made her uncomfortable and scared as she felt the Member was trying to connect and go out with her and that his use of profanity in the messages was inappropriate. The Panel further accepted Ms. 1’s evidence that Student 1’s anxiety was amplified after the Facebook messages, such that, had it not been for the assistance from Student 1’s guidance counselor, Ms. 1 believes that Student 1 would not have been able to finish her Grade [XXX] year. Additionally, the Panel accepted Student 1’s evidence that the Member’s Facebook messages continue to make her feel “gross”, that the Member still makes her feel uncomfortable, and that she finds it difficult to trust and respect men in positions of power because of the Member’s actions. The Panel therefore finds that the Member psychologically or emotionally abused Student 1, contrary to subsection 1(7.2) of Ontario Regulation 437/97.

(iv) The Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of a student or students as defined in section 1 of the Act

127The Panel finds that the Member sexually abused Student 1. Section 1(1) of the Act includes in its definition of sexual abuse, “behaviour or remarks of a sexual nature by the member towards the student.” Section 1(7) of the Act further sets out that “[f]or greater certainty, for the purposes of the definitions of “sexual abuse” and “sexual misconduct” in subsection 1(1), behaviour, remarks and conduct include acts or remarks that are done or made by electronic means”.

128The parties differed in their positions about whether the Facebook messages to Student 1 could properly be characterized as “behaviour or remarks of a sexual nature”. College Counsel urged the Panel to consider the perspectives of Student 1 and Ms. 1. Member’s Counsel said the comments were ambiguous and the Panel should therefore rely on Dr. Hawes’ opinion that the Member had not engaged in sexual abuse. The Panel disagrees with the parties and Dr. Hawes’ opinion and adopts the advice of ILC to follow the approach of the Supreme Court of Canada in Chase.

129The Panel acknowledges that Chase is a criminal case, the facts of which are distinguishable from the conduct at hand. However, the Panel believes that it is appropriate to adopt the Supreme Court of Canada’s approach of applying an objective, reasonable observer test to determine whether a person’s conduct is of a sexual nature. Adopting the words of the Supreme Court of Canada, “[t]he test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: Viewed in the light of all the circumstances, is the sexual or carnal context of [the behaviour or remarks to a student] visible to a reasonable observer” (Chase at page 302). This analysis involves a consideration of various factors, including: the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force (Chase at page 302).

130The Panel considered the following, taken as a whole, as indicia of the sexual nature of the Member’s conduct:

• the Member was in his thirties when he messaged Student 1 who was [XXX] years old at the time and not yet finished [XXX]school;

• the Member sent multiple messages to Student 1 late at night;

• the messages were sent from a private social media messaging platform rather than Board-approved emails;

• the messages were extremely informal, with text abbreviations like “u” and “ur”, “bf”, “r”, “n e time”, “msg”; emoticons; profanity (e.g., “sorry fucking phone”); and improper grammar and punctuation;

• the messages did not relate to schoolwork but were personal in nature; and

• the messages also contained sexual innuendo and suggestions of Student 1’s maturity.

131The Member sent various messages probing Student 1 for personal information. The Member asked Student 1 her age by making the statements “That a girl ur doing grade [XXX] right?” and “Same but m old ur young what r u [XXX] u should be howling at moon”. He probed her relationship status (i.e., “ur bf must love that ur smart and normal”). He repeatedly asked Student 1 about her personal life and interests though his messages:

• a message at 8:51 p.m. that said “Funnplans tonight” after she had indicated she was going out and another message at 1:21 a.m. that said “Done partying already”;

• “What’s new keepingnoutta trouble” and “Same how is the best of u dear”;

• “Hope u r doing well what’s up tonight”;

• “U must have some fun what makes [Student 1] smile” followed by “Well what makes u happy”;

• an exchange where he asked Student 1 “So what u do for fun on a Monday” and “[…] U ever get bored”, and when Student 1 responds that she has distractions, further asks Student 1 “Such as do share”, “Lol what distracts ya”, “I’m curious”, “U still up”.

132The Member complimented Student 1, referring to her as a “beautiful young woman” and responding with “Really ? Well they r dumb” when Student 1 told him she did not have a boyfriend. He suggested that she was mature through his comments, “Uwoukd be great at that ur a strong woman and motherly from what i recall” and “Well sounds like ur a woman with a plan”.

133Moreover, the Member used language that has sexual connotations in the vernacular. The Member sent Student 1 a message, “How’s ur nite u have some high needs lol”. The Panel is of the view that “high needs” can reasonably be interpreted as sexual innuendo, considering that this message was unsolicited, sent at 9:59 p.m., and followed by “lol”, as if to lighten the tone of the message. Further, the comment was unrelated to the last message exchange he had with Student 1, where they discussed her desire to work with troubled youth. It was part of a pattern of escalating innuendo. The Member later wrote to Student 1 saying, “U make me smile (followed by a winking face emoji)”; and when she responded “Do I”, the Member responded with “Maybe, “Is that bad”, “What are ur thoughts ?l”, which can be reasonably seen as being flirtatious toward Student 1. This exchange ultimately led to the Member asking Student 1 “Awake or Netflix talk play ???”, which is very similar to the slang “Netflix and chill”, a euphemism for sexual intercourse.

134The Panel is also of the opinion that his comment, “How can one b happy if they don’t know ur a beautiful young woman with a plan u need to know what u would waste ur time for in a man there are many great ones out there” can be reasonably seen as a suggestion that Student 1 should consider the Member as one of the “many great ones [i.e., men] out there”. The Panel notes that this comment from the Member came after he asked Student 1 what makes her happy and she responded by saying “Oh well I’m not too sure”, “That’s a very short list”. Student 1 had not been talking about dating or men and it was the Member who brought up a man potentially making Student 1 happy.

135The Panel acknowledges that the Member did not ask Student 1 to engage in sexual acts with him, that he did not ask her to go out with him, and that the comments were arguably less explicit and overt than those made by members in the cases presented by the parties. However, after carefully reviewing the entirety of the Facebook exchange, including the time of day or night when the messages were sent and the factors set out in Chase, the Panel finds that the Facebook messages demonstrate a pattern of communications the sexual context of which is visible to a reasonable observer. They are behaviour or remarks of a sexual nature made by a member to a student, and therefore amount to “sexual abuse” as defined in section 1 of the Act.

136The Panel also considered and rejected Dr. Hawes’ conclusion that she did not believe that the Member’s conduct amounted to sexual abuse. The Panel finds that it is reasonable to disregard Dr. Hawes’ conclusion on the basis that she was not qualified as an expert on the issue of sexual abuse and because her opinion “conflicts with inferences one might logically draw from other evidence”.²¹ Furthermore, it is the Panel’s role to determine whether the comments were sexual in nature and amounted to sexual abuse. The Panel does not require expert evidence to make this determination – it is one that is regularly made by panels of the Discipline Committee and is the ultimate issue the Panel needs to decide with respect to this allegation.

137The Panel notes that much of Dr. Hawes’ evidence indicates that the Member’s comments were sexual in nature, despite her conclusion that at the time she did not believe it amounted to sexual abuse. Dr. Hawes instructed Student 1’s principal to call the police because there were concerns about possible sexual impropriety. Dr. Hawes testified that Student 1’s and Ms. 1’s perceptions that the Member’s Facebook messages were sexually inappropriate and their belief that the Member was trying to “hook up” with Student 1, were “reasonable perception[s]”. Dr. Hawes testified that the Member had made innuendos in his comments to Student 1 that could reasonably be interpreted as having a sexual meaning and encouraging a relationship with him. She was concerned that the messages could eventually lead to a sexual relationship with Student 1 and testified that the messages could be seen as grooming behaviour. It is unclear why Dr. Hawes ultimately concluded that the Member’s conduct did not amount to sexual abuse, but the Panel nevertheless finds that her evidence on the whole was actually supportive of the conclusion that the Member’s Facebook comments were sexual in nature.

138For all of these reasons, the Panel finds that the Member engaged in sexual abuse of Student 1 as defined in section 1 of the Act, contrary to subsection 1(7.3) of Ontario Regulation 437/97.

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

139The Panel finds that the Member failed to comply with the ethical standards set out in the College’s by-laws. The Member demonstrated a lack of professional judgment and failed to show care for his students’ well-being when he decided to consume alcohol while he was responsible for students on a field trip. He also jeopardized the respect and trust that students, colleagues, parents, and the public could have in him (as testified to by Ms. Fowlow, Ms. Labelle, and Dr. Hawes) and failed to act with the reliability and moral action expected and articulated in the ethical standard of “Integrity”.

140The Member’s inappropriate comments about rape, vaginal tearing during childbirth, and miscarriage were also contrary to the Ethical Standards for the Teaching Profession. The Member clearly did not consider his students’ well-being, emotional wellness, and cognitive development when he made comments that were outside of the prescribed curriculum. The Member’s comments had a particularly harmful impact on Student 2, which shows that the Member’s conduct did not meet the ethical standards of “Care” or “Respect”. Moreover, the Member breached the ethical standard of “Trust” by not teaching the [XXX]program with the necessary sensitivity and respect, keeping in mind that this would have been the students’ first exposure to the topic of reproductive health and development in school. The Member’s comments about miscarriage, rape, and vaginal tearing during childbirth were completely inappropriate for his Grade [XXX] students. As Ms. 2 testified, Student 2 still believed in Santa Claus at the time of these comments and was clearly not developmentally ready to receive the type of comments the Member made about mature, adult topics. Through his comments, the Member exhibited a gross lack of judgment and breached the trust placed in him.

141Finally, the Facebook messages sent to Student 1 are clearly a breach of the ethical standards of “Care” and “Respect”. The Member’s selfish acts did not consider the position and well-being of Student 1 and did not respect her human dignity or emotional wellness. He abused and breached his position of trust and acted without integrity when he made comments of a sexual nature to Student 1. The Panel accepts Student 1’s persuasive evidence about how the Facebook messages breached the trust that she had placed in the Member, as a “young, naïve and vulnerable” student at the time, who was also “not in a great place either mentally or emotionally”. As a result of his actions, Student 1 has lost respect for the Member and finds it hard to trust and respect men in positions of power.

(vi) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)

142The Panel finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(a) of the Education Act provides that it is the duty of a teacher to, “teach diligently and faithfully the classes or subjects assigned to the teacher”. The Member failed to diligently and faithfully teach the [XXX]Program to his Grade [XXX] class when he made comments to them about rape, vaginal tearing during childbirth, and miscarriage.

143The Panel accepts the evidence of Ms. Labelle and Dr. Hawes that the Grade [XXX][XXX]program is students’ first exposure in school to the topic of reproductive health and development, and is therefore a carefully prescribed curriculum, rooted in the Catholic faith, intended to discuss topics in a manner that is sensitive, caring, developmentally appropriate, and protective of students’ well-being. The Panel accepts that it is dangerous for teachers to go outside of the curriculum as the Member has, as it could be very frightening and harmful for a [XXX]-year-old child to learn that they could experience sexual trauma and trauma during childbirth and pregnancy. Indeed, Student 2 was frightened by the Member’s comments and continues to be fearful of having a baby.

144Additionally, section 264(1)(c) of the Education Act provides that teachers must “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” In other words, teachers are expected to act as good role models and exemplify virtuous conduct. By consuming alcohol while responsible for the supervision of students, and by making multiple inappropriate comments to students about mature topics, the Member was a poor role model and failed to adhere to his duties as a teacher.

(vii) 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)

145The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The terms “disgraceful, dishonourable or unprofessional” do not have a legislated definition, but discipline committees have defined these terms disjunctively, and in decreasing order of severity.

146Conduct characterized as “disgraceful” is considered the most egregious. Disgraceful conduct casts serious doubt on a member’s moral ability to perform their professional duties and on their ability to be a member of the profession. The Member’s Facebook messages to Student 1 were disgraceful by virtue of their inappropriately personal and sexual nature, particularly given the power imbalance that exists between teachers and students and given the previous connection between the Member and Student 1. Such conduct will not be tolerated by the Committee.

147Like disgraceful conduct, “dishonourable” conduct is considered to have an element of moral failing, and is less severe than disgraceful conduct, but more severe than conduct that is “unprofessional”. The Panel finds that the Member’s inappropriate comments made to his Grade [XXX] students would reasonably be seen to be both dishonourable and unprofessional. The [XXX]program is carefully designed to teach students about reproductive health in the spirit of Catholic teaching and loving relationships. Teachers must not only show professional judgment about the comments they make and examples they use in class, but they must also ensure that they consider the well-being of their students and honour the boundaries and objectives of the prescribed curriculum. The Member made several comments that were far beyond what was appropriate for Grade [XXX] students who were starting to learn about reproductive health. The Panel notes that the Member agreed that the topic of vaginal tearing during childbirth could be traumatic to a Grade [XXX] student without the maturity to process such information and could cause students to become scared of having babies. The Member also agreed that the topic of miscarriage is too advanced for Grade [XXX] students and that sexual violence could be a frightening topic for them. To discuss such mature topics with young and vulnerable students was insensitive, risked their well-being, and is therefore dishonourable.

148“Unprofessional conduct” typically refers to misconduct which demonstrates poor professional judgment. The Member admitted that it was a poor choice to have consumed a beer during the field trip to Saunders Farm . The Panel finds that the Member exhibited a lack of professional judgment that day. He was in a public establishment, in the view of others, and was still on duty. He was supposed to simply step away from the students briefly to pick up lunch for them. This incident occurred during school hours and he was to return to students and complete the remainder of the school trip. His actions could have been witnessed by parents or others who knew he was a teacher, and they were in fact witnessed by a colleague. While the Member testified that he was not intoxicated, the Panel notes that alcohol may affect a person in many ways and the Member should not have consumed a substance that could impair his ability to care for his students. The Member’s lack of professional judgment is further demonstrated both by his admission that it had not crossed his mind at the time that a parent could have smelled alcohol on his breath, as well as his justification that it was not a big deal because he had gum with him. The Member clearly failed to appreciate his professional obligations that day.

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

149The Panel finds that the totality of the Member’s misconduct was unbecoming a member of the teaching profession. Teachers hold a unique position of trust within the community. Students, parents, and the public lose confidence in the teaching profession when individual members disregard their professional and ethical obligations and make poor choices as the Member did when he consumed alcohol on a school trip, made multiple inappropriate remarks to students, and sent messages of a sexual nature to a student. Through his various egregious acts of misconduct, the Member undermined the public’s trust in teachers and the reputation of the profession as a whole.

L. INTERIM ORDER

150As the Panel has found the Member to have engaged in the sexual abuse of a student, the Panel is required by subsection 30.2(1)(b) of the Actto make an interim order directing the Registrar to suspend the Member’s certificate of qualification and registration until the Panel makes its penalty order. The Panel therefore makes this interim order.

151The Tribunals’ Office will schedule a subsequent hearing date for the penalty portion of this hearing and for the Panel to hear the Member’s constitutional challenge, as needed.

Date: February 10, 2023

Stéphane Vallée, OCT Chair, Discipline Panel

Yasser Leheta, OCT Member, Discipline Panel

Kimberley Westfall-Connor Member, Discipline Panel

Footnotes

1. 1See Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 (“Mackay”) and Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086 (“Danson”).
2. 2R. v. Nunziata, 2005 ONCJ 292, at paragraph 12.
3. 3The LeSage Report refers to a report released on May 31, 2012 by the Honourable Justice LeSage, former Chief Justice of the Ontario Superior Court, reviewing the College’s intake, investigation and discipline procedures and outcomes, and Dispute Resolution Program. According to Member’s Counsel, Justice Lesage considered but did not recommend mandatory minimum penalties in his report. The LeSage Report was considered by the government when they introduced the mandatory revocation provisions in 2016.
4. 4See R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944: The timing of when an adjudicator will hear a Charter challenge is a discretionary one that must be made based on the circumstances of each case. It may be appropriate for an adjudicator to consider constitutional questions as a preliminary question, as “in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law, which is not dependent on the facts to be elicited during the trial, may come within the exception to the general rule to reserve on any application until the end of the case after the evidence has been heard (p. 954-555). See also: R. v. Laba, 1994 CanLII 41 (SCC), [1994] 3 S.C.R. 965 and Lokan, Andrew and Fenrick, Michael, Constitutional Litigation in Canada, (loose-leaf) (2019: Thomson Reuters Canada Limited), chapter 10.3 – Bifurcated Hearings.
5. 5Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97 (“Phillips”).
6. 6Nova Scotia (Workers’ Compensation Board) v. Martin, Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504.
7. 7Mackay, supra note 1 at para. 9 and Danson, supra note 1 at p. 1101.
8. 8A. et al., 2007 ONSEC 12.
9. 9R. v. John, 2018 ONCA 702.
10. 10Section 30.3 of the Act is the provision that retroactively revokes members’ certificates of qualification and registration by deeming the certificate to be revoked if they were found guilty of sexual abuse of a student or a prohibited act of child pornography before section 30.3 came into force.
11. 11Phillips, supra note 5 at para. 9.
12. 12Mega-C Power Corporation et al., 2007 ONSEC 4.
13. 13MacKay, supra note 1 at para. 20.
14. 14Allegation withdrawn at the request of College Counsel.
15. 15Ms. Labelle’s legal name at the time of the hearing was Caroline Keeley. She advised that she preferred to be addressed as Ms. Labelle.
16. 16Westerhof v. Gee Estate, 2015 ONCA 206.
17. 17Ontario College of Teachers v. Fox, 2021 ONOCT 34 (“Fox”). Member’s Counsel also referred to R. v. Molodowic, 2000 CSC 16, [2000] 1 S.C.R. 420 (“Molodowic”).
18. 18Molodowic, ibid. at paragraph 8. See also: R. v. Richmond, 2016 ONCA 134 at paragraph 58 (“Richmond”).
19. 19F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41.
20. 20Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053(ONSC).
21. 21Richmond at para 58.