Ontario College of Teachers v. Zutt, 2023 ONOCT 24

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Zutt 2023 ONOCT 24 Date: 2023-04-24

DECISION, REASONS FOR DECISION AND ORDER

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against Christopher John Zutt, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

CHRISTOPHER JOHN ZUTT (REGISTRATION #449090)

PANEL: Myrna Tulandi, Chair Wanda Percival, OCT Lisa Tucker

HEARD: April 21, 2023

COUNSEL: Lisa Feinberg, for the Ontario College of Teachers Philip Abbink, for Christopher John Zutt Rebecca Durcan, Independent Legal Counsel

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on April 21, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

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

A. PUBLICATION BAN

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing. College Counsel advised that the publication ban would apply to the identities of Students 1, 2, 3 and 4, all of whom were under 18 years of age at the time of the hearing.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated March 28, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Christopher John Zutt is guilty of professional misconduct as defined in the Act in that:

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

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

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);²

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

(e) he committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

C. STATEMENT OF UNCONTESTED FACTS

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

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

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

3. Student 1, Student 2, Student 3 and Student 4 were male students in either Grade [XXX] or Grade [XXX] classes taught by the Member during the 2018-2019 and/or the 2019-2020 school years.

4. In the 2018-2019 school year, the Member:

(a) tapped Student 1 multiple times with his foot while Student 1 was tying his shoelace and told Student 1 to stand up and participate in [XXX] class;

(b) pulled, or attempted to pull, Student 1’s chair back from his desk while Student 1 was seated on the chair; and

(c) pulled, or attempted to pull, Student 2’s chair back from his desk while Student 2 was seated on the chair, while telling him to go to another desk and sit alone.

5. In the 2019-2020 school year, the Member:

(a) made a dismissive “pfft” noise to Student 3 while looking at the student’s hand when Student 3 told the Member that he had cut his hand and asked to go to the office for a Band-Aid, which caused spittle to land on Student 3’s hand; and

(b) pulled a chair out from underneath Student 4, causing Student 4 to fall to the ground.

6. The Member had been previously disciplined twice by the Board for inappropriate physical contact and/or inappropriate communications with students.

7. The Investigation Committee of the College has previously issued the Member an Admonishment on December 12, 2018 with respect to the inappropriate verbal and physical interactions he had with students in 2017.

8. On December 17, 2018, the Board sent the Member a Letter of Discipline with respect to the misconduct set out at paragraph 4. The Member was suspended for three days and was mandated to complete, and did complete, professional learning and a course in restorative practices.

9. The Member resigned from the Board in August 2020.

PLEA OF NO CONTEST

10. By this document, the Member agrees that the Discipline Committee can accept as correct for purposes of this proceeding only the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

11. The Member hereby acknowledges that the Uncontested Facts set out at paragraphs 4 and 5 of the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the following allegations of professional misconduct against him, being more particularly:

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

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

(c) he committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

12. By this document the Member states that:

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

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

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

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

(e) he understands that any agreement between the parties with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

13. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

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

D. DECISION

6Counsel for the College requested the withdrawal of the allegations of professional misconduct outlined in paragraphs (a) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(7) and 1(7.2) of Ontario Regulation 437/97. College Counsel stated that the Panel’s permission to withdraw these allegations was being sought as there was insufficient evidence to support a finding of professional misconduct under these subsections. The Panel granted these requests.

7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on April 21, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(14) and 1(18).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 9 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts at paragraphs 4 and 5 of Exhibit 2 constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member repeatedly made inappropriate physical contact with students.

9The Member abused students physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member tapped Student 1 multiple times with his foot while Student 1 was tying his shoelace and told Student 1 to stand up and participate in [XXX] class. Furthermore, the Member pulled, or attempted to pull, Student 1’s and Student 2’s chairs from their respective desks while they were seated on the chairs. Additionally, the Member pulled a chair out from underneath Student 4, causing him to fall to the ground. Teachers must ensure student safety and cannot resort to unnecessary physical contact with students at any time, including when attempting to address student behaviour or manage their classroom. Pulling a chair out from under a student, in particular, is irresponsible and could hurt a student. The Panel also places significant weight on the fact that the Member did not contest that his conduct was physically abusive.

10The Panel finds that the Member breached subsection 1(14) of Ontario Regulation 437/97 by contravening the provisions of the College by-laws, which set out the professional and ethical standards for the teaching profession. In particular, the Member breached the ethical standards of “Care” and “Respect” as well as the standard of practice of “Leadership in Learning Communities”. Members must demonstrate their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice. They must honour human dignity, emotional wellness and cognitive development. Furthermore, Members are required to promote and participate in the creation of collaborative, safe and supportive learning communities.

11By repeatedly making inappropriate physical contact with students, the Member demonstrated a concerning lack of commitment to students’ well-being and was disrespectful towards them. Furthermore, the Member’s conduct also put students’ safety at risk. Student 1 and Student 2 could have fallen and injured themselves when the Member pulled their chairs while they were seated. Indeed, Student 4 did fall to the ground as a result of the Member pulling a chair out from underneath him. The Panel finds that by engaging in such conduct, the Member also failed to foster a safe and supportive environment for students. Students should not have to worry that their adult teacher will use physical means to address their behaviour or that they may have their chairs pulled out from under them. The Member’s conduct therefore fell below the standards of the profession.

12The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members must remain calm and composed, and use non-physical means in their interactions with students. By repeatedly making inappropriate physical contact with students, the Member failed to meet these expectations. Moreover, the Member made a dismissive noise to Student 3 in response to the student’s request to go to the office to get a Band-Aid for a cut on his hand, and caused spittle to land on the student’s hand in the process. This type of disregard for the well-being of students would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

F. PENALTY DECISION

13The parties entered into a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on April 21, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months commencing on the 15th calendar day following the date of the Oral Decision and the Order of the Discipline Committee relating to this matter. If the Oral Decision and Order is rendered between May 1st and August 1st, the suspension will commence on September 1st; and

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) within 90 days of the date of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding anger management, subject to the following conditions:

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

(ii) upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

14The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.³ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Allen, 2021 ONOCT 74; Ontario College of Teachers v. Dayfoot, 2018 ONOCT 73; Ontario College of Teachers v. Jackson, 2020 ONOCT 219; Ontario College of Teachers v. Thompson, 2020 ONOCT 133; and Ontario College of Teachers v. Wai, 2019 ONOCT 117.

15The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. Firstly, the Member’s conduct was not a momentary lapse of judgment. He repeatedly made inappropriate physical contact with students. Secondly, the Member’s conduct was directed at four students. Finally, the Member continued to engage in similar misconduct despite having previously been disciplined twice by the Board for inappropriate physical contact and/or inappropriate communications with students, and having previously received an Admonishment from the Investigation Committee for inappropriate verbal and physical interactions he had with students in 2017. In terms of mitigating factors, the Member did not contest his misconduct, sparing students from having to testify and saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

16The Panel finds that the Member’s repeated inappropriate physical contact with students, despite warnings from the Board and the College’s Investigation Committee, warrants a reprimand. Members are expected to remain calm and composed in their interactions with students. They must also provide a safe environment for students. The Member repeatedly failed to do so. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

17Given the nature and severity of the Member’s misconduct, the Panel finds that a three-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on May 6, 2023, which is 15 days after the Panel’s Oral Decision and Order.

18The Panel notes that the Member has completed professional learning and a course in restorative practices. The Panel finds that the course of instruction regarding anger management will further assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students. The coursework should provide the Member with a clear understanding of how to remain calm and composed when interacting with students, and with the tools to control his emotions without resorting to the use of physical means to manage his classroom.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation withdrawn at the request of College Counsel.
3. 3See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.