Ontario College of Teachers v. Calmeiro, 2023 ONOCT 27

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Calmeiro 2023 ONOCT 27 Date: 2023-04-21

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 Gil Manuel Calmeiro, a member of the Ontario College of Teachers.

Between:

Ontario College of Teachers

– and –

Gil Manuel Calmeiro (Registration #268572)

Panel: Emile Ramlochan, Chair Susan Arbour, OCT Maria Bueno-Marcial, OCT

Heard: April 14, 2023

Counsel: Lisa Feinberg, for the Ontario College of Teachers Jesse Gutman, for Gil Manuel Calmeiro Julie Maciura, 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 14, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Gil Manuel Calmeiro, also known as Gil Manuel Calmeira, (the “Member”) attended the hearing and had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

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

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated July 27, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Gil Manuel Calmeiro is guilty of professional misconduct as defined in the Act in that:

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

(b) he abused a student or students physically, contrary to Ontario Regulation 427/97, subsection 1(7.1);

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

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

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

C. AGREED STATEMENT OF FACTS

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

1. At all material times, Gil Manuel Calmeiro 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 Durham District School Board (the “Board”) as a teacher at [XXX] School (the “School”) located in Pickering, Ontario.

3. In the 2019/2020 academic year, Student 1, Student 2, and Student 3 were male racialized students in the Member’s Grade [XXX] [XXX] class at the School.

4. In the 2019/2020 academic year, the Member made comments to students at the School that he ought to have known were inappropriate and unwelcome, including, but not limited to:

(a) telling Grade [XXX] students that if they did not stop fooling around, he would hit them over the head with his lacrosse stick;

(b) saying to Student 1,

(i) “Maybe if you go on a jog, [your] grades will go up and you’ll be more athletic”;

(ii) “You’re so fat my grandmother can run faster than you”;

(iii) that if he does not take [XXX] next year, the Member will pass him because he does not want to see him in his class again;

(iv) that he looks like an “Iroquois Indian” with that haircut, saying to the class, “doesn’t he look like an Indian? Mohican. Last of Mohicans right there”;

(v) “Are you sure you are not Egyptian?” and then asking the Student if he was Middle Eastern, Indian or Pakistani;

(c) saying to Student 2,

(i) “You can’t fix stupid”;

(ii) “Are you born in Canada?”;

(iii) that his brain was the size of a peanut;

(d) saying to Student 3, “Are you slow?” and “Wow, you really are stupid, get the fuck out of here”;

(e) telling the class they could punch a student in the head;

(f) using profanity in the presence of and/or directed at students, including, but not limited to “stupid shit,” “fuck,” “bullshit,” “fucking stupid,” “retard,” “idiot,” “dumb” and/or “stupid”; and

(g) threatening to fail all students in his class.

5. In the 2019/2020 academic year, the Member engaged in physically aggressive, threatening and/or abusive behaviour with students, including but not limited to:

(a) slamming his hand hard on the desk beside Student 1 and saying to him, “Are you scared?” and “Next time you put your head down I’ll break your nose”;

(b) kicking the back of Student 1’s chair and Student 2’s chair;

(c) grabbing Student 1’s shoulder and squeezing it; and

(d) flicking Student 2 in the head.

6. Students in the Member’s Grade [XXX] [XXX] class videotaped some of the interactions between the Member and his Grade [XXX] students. In particular, there is video footage of the conduct set out at paragraphs 4(b)(iv), 4(c)(i), 4(f), and 5.

7. As part of an investigation conducted by the Board, the School interviewed students and reviewed the video footage referenced above at paragraph 6. Students reported that the Member’s conduct was a source of considerable upset and discomfort for them. Student 1 and Student 2, who were racialized students, drew the conclusion that they were being targeted by virtue of their skin colour.

8. On March 5, 2020, the Board held a meeting with the Member and his union representative to give him an opportunity to respond to the allegations made against him. When confronted with these allegations, the Member stated that he had only been “joking” with reference to some of the comments he made, which are described above at paragraph 4.

9. On August 31, 2020, the Board terminated the Member’s employment for cause. The Member has grieved his termination and the matter has been referred to arbitration.

10. At the time of the incidents set out at paragraphs 4 and 5, Mr. Calmeiro was experiencing health challenges. In late November 2019, Mr. Calmeiro started taking a new medication and sought medical treatment for illness. In December 2019, Mr. Calmeiro began counselling in relation to his illness.

GUILTY PLEA

11. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-10 above (the “Admitted Facts”).

12. The Member hereby acknowledges that the Admitted Facts referred to in paragraphs 4-7 constitute conduct which is professional misconduct and pleads guilty to the following allegations of professional misconduct against him, being more particularly:

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

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

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

(d) he 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); and

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

13. By this document the Member states that:

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

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

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

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

(e) he understands that any agreement between 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.

14. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on April 14, 2023 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1 (7.2), 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts referred to in paragraphs 4 to 7 of Exhibit 2 constitute professional misconduct under the heads of misconduct set out above.

8The Admitted Facts demonstrate that the Member abused students verbally, contrary to subsection 1(7) of the Ontario Regulation 437/97. The Member engaged in various forms of verbal abuse, including by making demeaning, threatening, culturally insensitive, and otherwise inappropriate comments to students. The Member specifically targeted Student 1, Student 2 and Student 3, all of whom were racialized students, with his offensive and mean-spirited comments. Specifically, he made belittling remarks to Student 1 about his physical appearance and his athletic skills [XXX] (e.g., “You’re so fat my grandmother can run faster than you”). The Member also made derogatory comments about Student 1’s race (e.g., that he looks like an “Iroquois Indian” with that haircut; and “Are you sure you are not an Egyptian?”). He demeaned Student 2 by, among other things, telling him that his brain was the size of a peanut. And, he told Student 3 that he was stupid and to “get the fuck out of here.” The Member repeatedly used profanity in the presence of students and made threatening and violent remarks to them. These violent, aggressive, belittling, offensive and racist comments all amount to verbal abuse.

9The Member abused students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1). The Member engaged in a physically aggressive, threatening, and abusive manner towards students. For instance, the Member slammed his hand on the desk beside Student 1 and asked him “Are you scared?”, and then threatened to break Student 1’s nose. The Member kicked the back of Student 1 and Student 2’s chairs. He also grabbed Student 1’s shoulder and squeezed it, and flicked Student 2 in the head. Members of the profession should never threaten to physically hurt students or use unnecessary physical force against them. They must prioritize the physical safety and well-being of students and they must maintain their composure and employ appropriate classroom management techniques rather than resorting to any form of violence against students.

10The Member abused students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The Member’s verbally and physically abusive conduct was also a source of considerable discomfort for students. It is psychologically and emotionally abusive for a teacher to create an intimidating atmosphere in the classroom where students are fearful of getting hurt or being targeted by their teacher. The Member’s abusive conduct made Student 1 and Student 2, in particular, believe that they were being targeted by virtue of their skin colour, which is completely unacceptable. Members are responsible for creating safe and inclusive spaces at school, and the Member’s conduct had the opposite effect.

11The Member committed acts or omissions that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). As described above, the Member made offensive and culturally insensitive comments towards racialized students, which made them feel targeted because of their skin colour. He used profanity in the presence of, and directed at, students. He acted aggressively towards students, threatened to hurt them and made inappropriate physical contact with them. Overall, the Member repeatedly disregarded the physical and emotional safety and well-being of students and he therefore fell far short of meeting his moral and professional responsibilities as a member of the teaching profession. Accordingly, the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

12Finally, the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Parents and the public expect teachers to serve as positive role models for students. When members resort to engaging in threatening and offensive behaviour towards students, it undermines the public’s trust and confidence in the teaching profession as a whole.

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 14, 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 five (5) 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, classroom management, and cultural diversity and sensitivity training, subject to the following conditions:

(i) the Member shall provide the course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea 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.¹ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v Aloise, 2022 ONOCT 9; Ontario College of Teachers v Antonenko, 2019 ONOCT 79; Ontario College of Teachers v Chéry, 2016 ONOCT 73; and Ontario College of Teachers v Towler, 2015 ONOCT 79.

15The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the repeated nature of the Member’s misconduct, that some of the comments directed at students had racist undertones, and that the Member’s conduct was a source of considerable upset and discomfort for students. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, expressed sincere remorse, and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

16The Panel finds that the Member’s pattern of inappropriate and offensive conduct warrants a reprimand. Members of the teaching profession are expected to provide students with a safe learning environment and to treat all students equitably and with dignity. By engaging in threatening behaviour and making inappropriate comments towards students, the Member exposed the students to aggressive behaviour, profanity, demeaning, and offensive remarks and created a toxic environment in his class. 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 five-month suspension is reasonable and appropriate. College Counsel presented prior cases involving similar conduct in which the suspensions ordered ranged from five to six months. The Panel therefore finds that the five-month suspension agreed to by the parties falls within the appropriate penalty range. 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 April 29, 2023, which is 15 days after the Panel’s Oral Decision and Order.

18The Panel finds that the course of instruction regarding anger management, classroom management, and cultural diversity and sensitivity training will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students. More specifically, the coursework will help the Member learn appropriate tools and classroom management strategies to address student behaviour and will help him gain further insight into the importance of respect for diversity and inclusion in his teaching practice.

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