DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Scott-Thomas 2023 ONOCT 33

Date: 2023-04-25

DECISION, REASONS FOR DECISION AND ORDER

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

AND IN THE MATTER OF a discipline proceeding against

David Alexander F Scott-Thomas, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID ALEXANDER F SCOTT THOMAS (REGISTRATION #402562)

PANEL: Emile Ramlochan, Chair

Susan Arbour, OCT

Maria Bueno-Marcial, OCT

HEARD: April 14, 2023

Ava Arbuck, for the Ontario College of Teachers

Kirsty Niglas-Collins and Austen Metcalfe, for David Alexander F Scott-Thomas

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.

2David Alexander F Scott-Thomas (the “Member”) did not attend the hearing but 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 December 9, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that David Alexander F Scott-Thomas is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) [pre-May 2008 amendment] and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;¹

(b) he failed to comply with the Act or the regulations or the by-laws, specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);²

(c) 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);

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

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. David Alexander F Scott-Thomas is an inactive/non-practising member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “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 as the Head Coach [XXX] for the Department of Athletics at the University [XXX] (the “University”). At all material times, the Member also coached select high school and university student athletes at his club, the [XXX] Club (the “Club”) in [XXX], Ontario. The Member was not affiliated with nor employed by a high school at any material time.

Student 1

3. At all material times during the [XXX] and [XXX] academic years, Student 1 was a female high school student and student athlete in [XXX], Ontario.

4. At all material times between September [XXX] and December [XXX], Student 1 was a first year undergraduate student and a student athlete at the University.

5. On multiple occasions during these time periods the Member and Student 1 had personal conversations.

6. From December [XXX] to December [XXX], the Member and Student 1 engaged in a consensual³ sexual relationship.

7. The Member abruptly ended his relationship with Student 1 in December [XXX], which distressed Student 1 and had a significant negative impact on her emotional health. She left the University and her [XXX] career was interrupted while she dealt with the consequences of the relationship on her psychological well-being.

8. In 2006, the University received a complaint about the Member’s relationship with Student 1. An independent investigator concluded that there was a “very strong emotional relationship” between the Member and Student 1 that was inconsistent with the Member’s role as her coach, and that he violated the trust placed in him in his role as athletic coach, following which the University suspended the Member for one month in early 2007.

Person A

9. At all material times from September 2018 to September 16, 2019, Person A was a graduate student and student athlete at the University, a volunteer assistant coach at the University, and a national athlete. At all material times between September 2018 and September 16, 2019, the Member was Person A’s athletic coach.

10. From February 2019 to mid-September 2019, the Member had a personal as well as professional relationship with Person A that was inconsistent with his duties as a university coach. During their interactions he shared personal information with Person A, provided her with gifts and meals, invited her to his home, complimented her on her appearance.

11. On or about September 16, 2019, Person A resigned from her position as assistant coach at the University and ended her coaching relationship with the Member because, despite her attempts to set emotional boundaries, she felt the Member continued to overstep them, and she believed the dynamic of their relationship had become unprofessional, unhealthy, and it made her feel uncomfortable.

12. As a result of the reasons stated by Person A for resigning, the University investigated the Member’s conduct. An independent investigator concluded that the Member’s actions towards Person A were in breach of the University’s Policy on Prohibited Conduct in Sport and Code for Prohibited Conduct in Sport. Further, given that the Member had previously been found to have engaged in inappropriate conduct with a female athlete (Student 1), the investigator also concluded that the Member ought to have been aware of the expectation that he must act in a responsible and professional manner that did not violate or appear to violate his position of trust as a coach.

13. The University terminated the Member’s employment, effective December 16, 2019.

14. In an article in Canadian [XXX] Magazine dated April 2, 2020, the Member issued the following statement: “In the course of my 22-year coaching career, I have always endeavoured to conduct myself with integrity and professionalism. In one case, I failed. I deeply regret my behaviour at that time. I am sorry for the pain and disappointment that my actions caused.”

15. Attached hereto and marked as Exhibit “B” is a copy of the College’s Professional Advisory: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct, in effect as of September 27, 2002.

PLEA OF NO CONTEST

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

17. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7) [pre-May 2008 amendment], 1(14), 1(18), 1(19). The Member further does not contest that the Uncontested Facts constitute sexual abuse of a student as defined in Section 1 of the Act.

18. 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

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

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

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

19. 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.

20. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of 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) [pre-May 2008 amendment], 1(14), 1(18) and 1(19). The Member also engaged in sexual abuse of a student as defined in section 1 of the Act.

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 15 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 constitute professional misconduct under the heads of misconduct set out above.

8The Uncontested Facts demonstrate that the Member abused a student physically, sexually, verbally, psychologically or emotionally, contrary to subsection 1(7) [pre-May 2008 amendment] of Ontario Regulation 437/97, and that he engaged in sexual abuse of a student as defined in section 1 of the Act. Given the use of the disjunctive “or” in the drafting of this subsection, any one of the above forms of abuse is sufficient to ground a finding under subsection 1(7) [pre-May 2008 amendment]. The Uncontested Facts demonstrate that the Member sexually abused Student 1. The Panel relies on paragraph 3 the Statement of Uncontested Facts which indicates that, during the [XXX] and [XXX] academic years, Student 1 was a high school student and a student athlete, and the parties did not contest that Student 1 was a “student” for the purposes of making a finding of sexual abuse in this case. Paragraph 6 of the Uncontested Facts indicates that, from December [XXX] to December [XXX], the Member and Student 1 engaged in a “consensual sexual relationship”. While the Panel fundamentally disagrees that a student can consent to engaging in any sexual activity with a member of the teaching profession within the framework of the Act which considers sexual intercourse, touching, behaviour or remarks of a sexual nature between a student and a member as professional misconduct that is subject to mandatory revocation, the Panel nevertheless accepts that the Member engaged in sexual activity with Student 1 that meets the definition of sexual abuse. By engaging in sexual activities with Student 1, the Member egregiously breached his position of trust and authority as the student’s [XXX] coach at the [XXX] Club in [XXX].

9The Panel relies on paragraph 7 of the Uncontested Facts to make a finding that the Member abused a student psychologically or emotionally contrary to subsection 1(7) [pre-May 2008 amendment] of Ontario Regulation 437/97. The Member engaged in sexual activity with Student 1 for two years and then abruptly ended contact with Student 1 in December [XXX], which distressed Student 1 and had a significant negative impact on her emotional health. It is reasonable to infer that the sexual activity also impacted Student 1 psychologically or emotionally while she was still a high school student. The Panel also places considerable weight on the fact that the Member did not contest that his conduct amounted to psychological or emotional abuse of Student 1.

10The Member failed to comply with section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). The Member breached the ethical standards of “Care”, “Respect”, “Trust” and “Integrity” set out in the by-laws. The ethical standard of “Care” requires members to demonstrate their commitment to students’ well-being and learning through positive influence, compassion, and empathy in practice. The ethical standard of “Respect” requires members to honour emotional wellness and cognitive development. “Trust” embodies fairness, openness, and honesty in a member’s professional relationships. The ethical standard of “Integrity” requires members to conduct themselves with honesty, reliability and moral action. It is self-evident that members who sexually abuse students have disregarded the ethical standards of the teaching profession. The Member abused his position of trust and authority as a coach to student athletes, by taking advantage of his access to students for his own sexual purposes.

11The 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). Teachers are expected to be upstanding members of the community and to maintain appropriate professional boundaries with students. The Member engaged in an inappropriate personal contact with Student 1 which escalated to sexual activity. This conduct demonstrates the Member’s significant moral and professional failings. Moreover, as a University athletic coach, the Member again failed to respect appropriate boundaries with Person A, a student athlete. Despite Person A’s attempts to set boundaries, the Member continued to overstep them by sharing personal information with her, providing her with gifts and meals, inviting her to his home, and complimenting her on her appearance. This behaviour made Person A feel uncomfortable. The Member’s repeated abuse of his position of trust and authority with respect to female athletes is therefore appropriately characterized as disgraceful, dishonourable, and unprofessional.

12The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). By repeatedly engaging in serious boundary violations, which included the Member’s sexual abuse of Student 1 and his inappropriately personal relationship with Person A, the Member significantly undermined the reputation of the teaching profession and breached the trust which students, parents and the public place in teachers.

F. PENALTY Decision

13The parties entered into a Joint Submission on Penalty (Exhibit 3), 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 Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

2. The Member is directed to receive a written reprimand and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”).

G. REASONS FOR PENALTY DECISION

14The Member’s professional misconduct consisted of or included the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and notes that it has no discretion in this regard. The mandatory penalty provisions apply retrospectively in this case pursuant to section 63.2 of the Act.⁴

15The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but notes that the parties are jointly asking it to confine its order to the mandatory ones. The Panel finds it reasonable not to make any additional orders in light of the Member’s plea of no contest and joint submission on penalty, particularly given the high threshold that must be met before rejecting a joint submission on penalty.

16The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Prior to the May 5, 2008 amendments to Ontario Regulation 437/97, subsection 1(7), subsection 1(7) grouped together physical, sexual, verbal, psychological or emotional abuse. Since the May 2008 amendments, these forms of abuse have been broken into separate subsections (i.e., for each distinct form of abuse).
2. 2As of January 20, 2022, section 32 of the by-laws has been renumbered as section 26.
3. 3As noted later in these reasons, the Panel takes issue with the use of the word “consensual” in the Statement of Uncontested Facts.
4. 4Although the mandatory penalty provisions were not in force at the time of the Member’s sexual abuse of Student 1, section 63.2 of the Act provides that the mandatory penalty provisions at section 30.2 apply retrospectively where the sexual abuse occurred before April 3, 2019 and no order has been made under subsection 30(4) of the Act before then. These conditions are met in this case.