DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Surlan 2023 ONOCT 47

Date: 2023-06-26

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

Gorian Surlan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

GORIAN SURLAN (REGISTRATION #438723)

PANEL: Linda Staudt, OCT, Chair Sarah Choudhury Victoria Romero

HEARD: May 30, 2023

Ava Arbuck, for the Ontario College of Teachers Susan Ursel, for Gorian Surlan 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 May 30, 2023, in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Gorian Surlan (the “Member”) did not attend the hearing but had legal representation.

3The 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

4The 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

5The allegations against the Member in the Notice of Hearing dated September 27, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Gorian Surlan is guilty of professional misconduct as defined in the Act in that:

(a) he failed to comply with the Act or the regulations or the by-laws, specifically section 26 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(b) 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);

(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. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Gorian Surlan is a member of the Ontario College of Teachers in the Inactive/Non-Practising status. 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 by the Toronto District School Board (the “Board”) as a teacher at [XXX]Institute (the “School”) in Toronto, Ontario.

October 25, 2021

3. Staff and students at the School were encouraged to wear costumes to celebrate Halloween on Friday, October 29, 2021.

4. On Monday, October 25, 2021, the Principal of the School sent an email to all staff entitled, “Appropriate Halloween Costumes - #MyCultureisNotACostume,” which explained the importance of avoiding costumes of cultural appropriation, stereotypes and caricatures, and included links to videos discussing the issue. The email did not mention “blackface” and the Member was not at that time familiar with that concept. Attached hereto and marked as Exhibit “B” is a copy of the email communication.

October 29, 2021

5. On Friday, October 29, 2021, the Member was seen arriving at the School that morning by the Principal and Vice-Principal of the School with what appeared to be a black mask on his face, with his forehead painted black. In actuality, the Member had painted his entire face in black face paint, and he had on a black fabric mask that covered his face from under his eyes to his chin, and was dressed in black clothing.

6. The Principal asked the Member what he was supposed to be for Halloween, and he said that he was dressed as a “zombie”. The Principal made no further comment to the Member about his costume at that time.

7. Before students arrived in class, the Member put on a blue medical mask underneath the black fabric mask he was wearing, and took a selfie picture of himself. Attached hereto and marked as Exhibit “C” is a copy of the photograph.

8. As his Period 1 class progressed that morning, the Member was having difficulty breathing through two masks, so he took off the black fabric mask and continued to teach wearing the blue medical mask only.

9. During class, a student took photographs of the Member while he was teaching and sent it to their parent. Attached hereto and marked as Exhibit “D” are copies of photographs taken of the Member.

10. During second period, there was a mentoring session taking place at the School where Grade [XXX] students met with older student mentors in the School. The Grade [XXX] teachers, including the Member, circulated among the students during the session. After seeing the Member, three students reported to the Vice-Principal that the Member was wearing “Blackface”, and they were upset about this.

11. The Principal was advised and called the Member to her office, at which time she observed that the Member’s entire face was painted black underneath his blue medical mask. The Principal told the Member that she had received complaints from students who were upset about seeing him in Blackface and explained that the black make-up was inappropriate. The Member seemed shocked and confused. The Principal instructed the Member to remove the black paint from his face and return to class. The Member did so immediately.

12. Before the end of the school day, the photographs that students took of the Member had been posted on social media, the parents of at least three students from the Member’s Period 1 class had contacted the Principal to express their concerns, and a news agency had contacted the Board’s Public and Community Relations department regarding the matter.

Media Coverage and Board Investigation

13. At the end of October 29, 2021, the Member was placed on home assignment and the Board initiated an investigation.

14. On Saturday, October 30, 2021, the Principal received several emails and phone calls from concerned parents and community members regarding what transpired the day before. The Principal sent out a letter to the School community explaining what happened, advising of the steps taken by the School, and confirming that “Caricatures of peoples’ race or culture are not appropriate and are offensive and hurtful. Regardless of whether this was intended or not, it was racist and dehumanizing”. Attached hereto and marked as Exhibit “E” is a copy of the Principal’s letter to the School community.

15. On Sunday, October 31, 2021, several media outlets published articles about the Member and his Halloween costume.

16. On Monday, November 1, 2021, the Member was placed on a paid suspension while the Board continued its investigation.

17. On Thursday, November 4, 2021, the Member met with the Board to discuss what had transpired on October 29, 2021.

18. On November 15, 2021, the Member’s employment was terminated by the Board after it concluded that “his appearance on October 29, 2021 was a source of significant upset to the School community.” Attached hereto and marked as Exhibit “F” is a copy of the termination letter.

Member’s Acknowledgements

19. The Member acknowledges that he read the Principal’s email dated October 25, 2021 about cultural sensitivity on or shortly after that date. The Member believed that the Principal’s guidance, which he accepted completely, emphasized not dressing as an Indigenous person.

20. The Member acknowledges dressing in all black clothing and painting his entire face black on October 29, 2021. His intention was to portray a zombie, and not to portray a person in a derogatory manner.

21. The Member acknowledges that when he was placed on home assignment, he looked up the history of “Blackface”, saw that it was a racist act, and was “horrified” that he had caused so much hurt to so many people. The Member apologizes for his lack of understanding of this history and for his actions.

22. The Member acknowledges that he is remorseful for the harm that he caused students, parents, staff and the School community with his actions. The Member immigrated to Canada as a 31-year old man with no education about Canadian history or culture. It was never his intention to cause harm, and had he known about the implications of painting one’s face black, he would not have done so.

Professional Advisory

23. In November and December 2021, after the events in question, the Ontario College of Teachers issued a Professional Advisory on Anti-Black Racism. The Member has read and familiarized himself with this Professional Advisory. Attached hereto and marked as Exhibit “G” is a copy of the professional advisory.

Current Status

24. The Member has since engaged in self-education through publicly available resources and videos in order to increase his awareness and understanding of anti-Black racism and Blackface.

25. The Member is not teaching in any capacity and is presently not living in Canada. He is living with family abroad due to financial constraints.

GUILTY PLEA

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

27. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(14), 1(15), 1(18), and 1(19).

28. 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 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 him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

29. In light of the Admitted Facts and the 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

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on May 30, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 25 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 constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts demonstrate that the Member attended School with his entire face painted in black paint, intending to dress as a zombie for Halloween, but was perceived by students, the School and the community as being dressed in Blackface, an offensive and racist act.

9The 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 standards of practice, “Commitment to Students and Student Learning,” “Professional Knowledge” and “Leadership in Learning Communities.” Members are expected to be sensitive to factors that influence individual student learning. The Member showed a disregard for students and their learning when he donned Blackface, which was upsetting to students and impacted their learning. Members are also expected to be current in their professional knowledge and reflect on factors such as ethics, research, policies and legislation to inform their professional judgment and practice. Although the Panel recognizes that the Member removed his face paint after being instructed to do so, and felt remorse after researching Blackface, the Panel cannot ignore that he had held his certificate of qualification and registration with the College since 2002. The Member ought to have been familiar with the College’s standards of practice as well as the Board’s policies and procedures that outline expectations of members to model healthy and respectful behaviours, as a teacher in Toronto, a large, multicultural and diverse city. He failed to be current in his professional knowledge and did not recognize its relationship to his practice. Members must also promote and participate in the creation of collaborative, safe and supportive learning communities and nurture respectful behaviour. Contrary to this expectation, however, the Member’s Blackface offended and upset students, as it promoted racism in an overt and offensive manner, regardless of the Member’s intentions.

10The Panel also finds that the Member breached the ethical standards of “Care,” “Respect,” “Trust,” and “Integrity,” by wearing Blackface. He demonstrated a concerning lack of awareness of its dehumanizing history, and perpetuated a harmful stereotype overtly, in front of students. Although the Member did not intend any harm, the Panel finds that he failed to commit to students’ well-being, honour their human dignity and emotional wellness, and respect social justice. The Member’s actions eroded the trust that students, parents and the community placed in him to demonstrate sound professional judgment. In doing so, the Panel finds that the Member demonstrated a lack of integrity and moral action.

11The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher to demonstrate a number of moral virtues and to generally act as a positive role model. The Member failed to set a good example for students when he acted in a manner that was perceived to be an overt display of racism. The Member’s lack of awareness about the historically degrading and offensive nature of Blackface and its harmful impact on the community is also particularly concerning, as it could have reasonably demonstrated to students that it was acceptable for a teacher to act in such a disrespectful manner. Despite his intentions, the Member acted as a poor role model for students and as such, failed to fulfill his duties as a teacher.

12The 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, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s conduct and failure to recognize the inappropriateness of his actions were not reflective of the respect and inclusiveness expected in Ontario’s schools. He ought to have known that his decision to wear Blackface as a part of his Halloween costume could be perceived as racist and offensive, particularly given his years of experience as a teacher and that his intention to dress as a zombie would not have been readily apparent to members of the school community and to the public in general. The Member’s conduct therefore showed a concerning lack of professional and moral judgment.

13The Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The public and members of the school community expect that teachers will exercise sound professional judgment and that students will feel accepted and safe while at school. The Member breached this trust when he dressed in Blackface, despite his ignorance at the time as to the racist and dehumanizing nature of that practice. The Member’s conduct was highly offensive, regardless of his intentions, and that, coupled with his lack of awareness about such an important concept, undermined the reputation of the teaching profession and the trust that parents, students and the public place in it.

F. PENALTY DECISION

14The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 30, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. 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”);

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

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

(a) prior to commencing or resuming a teaching position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding cultural sensitivity training subject to the following conditions:

(i) the Member will provide to a 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 (i) above, the course practitioner will 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;

(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) 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

15The 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 the parties: Ontario College of Teachers v. Mancuso, 2022 ONOCT 45; Ontario College of Teachers v. Gratton-Ruecker, 2022 ONOCT 49; Ontario College of Teachers v. Biondich, 2023 ONOCT 20; Ontario College of Teachers v. Lister, 2020 ONOCT 225; and Ontario College of Teachers v. Sadaka, 2019 ONOCT 60.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are (1) the Member’s inexcusable ignorance about the harm that he caused by donning Blackface, a racist and discriminatory practice, particularly given the recent and prevalent discourse around racism and his years of experience teaching in Toronto, a large, multicultural city; (2) the Member’s concerning failure to understand the Principal’s email about cultural sensitivity; and (3) the upset and outrage of students, parents and the community following his conduct. 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. The Member also suffered significant consequences, losing his employment and needing to leave Canada due to financial constraints. He was also the subject of extensive media coverage. Moreover, the Member engaged in self-education to learn more about anti-Black racism and Blackface, which demonstrates that he has taken responsibility for his actions. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

17The Panel finds that the Member’s actions warrant a reprimand. Members are expected to serve as role models for students, which the Member failed to do by painting his face black and failing to understand how this could be perceived as an offensive and overtly racist act. 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. The Panel finds it appropriate to order a written reprimand as the parties agreed, given that the Member is currently living out of the country.

18Given the nature and severity of the Member’s misconduct, the Panel finds that a one-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 September 1, 2023.

19The Panel finds that the course of instruction regarding cultural 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 if he ever returns to a teaching position in Ontario.

20The 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.