Ontario College of Teachers v. Malyon, 2023 ONOCT 51

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Maylon 2023 ONOCT 51

Date: 2023-07-20

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

James Archibald Malyon, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JAMES ARCHIBALD MALYON (REGISTRATION #458542)

PANEL: Kimberley Westfall-Connor, Chair Maria Bueno-Marcial, OCT Lisa Tucker

HEARD: July 17, 2023

Ava Arbuck, for the Ontario College of Teachers Jerry Raso, for James Archibald Malyon Erica Richler, 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 July 17, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2James Archibald Malyon (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of his reprimand, as agreed to by the parties.

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 February 2, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that James Archibald Malyon 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 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);

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

C. STATEMENT OF UNCONTESTED FACTS

6College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. James Archibald Malyon is a 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 by the Catholic District School Board of Eastern Ontario (the “Board”) as a teacher at [XXX] School (the “School”) in Cornwall, Ontario.

3. At all material times in the 2017-2018 academic year, Student 1 was a [XXX] year-old female student in Grade [XXX] at the School.

4. At all material times during the 2017-2018 academic year, Teacher A was employed as a [XXX] teacher at the School. Teacher A was Student 1’s [XXX] teacher during the second semester of the 2017-2018 academic year.

5. Approximately midway through the spring semester of the 2017-2018 academic year, Student 1 told the Member that Teacher A had touched her leg inappropriately and she felt uncomfortable in his class.

6. The Member told Student 1 that because Teacher A was a colleague, he was not able to hear any further details. The Member encouraged Student 1 to report the matter to the office, and he offered to accompany Student 1 to the office for that purpose. Student 1 agreed she would make the report and said she did not need the Member’s assistance.

7. A few days later the Member asked the Principal whether Student 1 had spoken to her recently about having been touched inappropriately by Person A [sic]. The Principal confirmed that she had spoken with Student 1 about the matter. The Member did not discuss the matter further with the Principal and assumed the Principal reported it to the appropriate authorities.

8. The Member acknowledges that he should have immediately reported the allegation to the appropriate authorities himself. Instead, he assumed that because the Principal was aware of the allegation, his obligation to report the matter had been fulfilled.

Current Circumstances:

9. The Member recently completed Parts I and II of the Principal’s Qualifications program (the “program”), and is currently a Principal with the Board. The program included an in-person presentation by the Children’s Aid Society about the duty to report.

10. As Principal, the Member currently leads monthly staff meetings where he regularly addresses the importance of the duty to report.

11. Attached hereto and marked as Exhibit “B” is a copy of the College’s Professional Advisories on the Duty to Report (June 2015, updated June 2018).

PLEA OF NO CONTEST

12. 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”).

13. 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(14), 1(18) [unprofessional], 1(19).

14. 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.

15. 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.

16. 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

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 July 17, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(18) [unprofessional] and 1(19).

E. REASONS FOR DECISION

8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 11 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. The Uncontested Facts demonstrate that the Member failed to fulfil his duty to report immediately and to the appropriate authorities an allegation that a teacher touched a student inappropriately.

9The Panel finds that the Member failed to comply with section 26 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). This provision sets out the standards of practice and the ethical standards for the teaching profession. The Member failed to carry out his professional and ethical responsibilities to ensure student safety, in this case, by not immediately reporting to the appropriate authorities a serious allegation of wrongdoing committed by a teacher against a student. The Panel also places significant weight on the fact that the Member did not contest that his conduct amounted to a breach of standards.

10In particular, the Member breached the standard of practice of “Leadership in Learning Communities”, which requires members to promote and participate in the creation of collaborative, safe and supportive learning communities to facilitate student success. The Member failed to adhere to this standard when he told Student 1 that he could not listen to her allegation about his colleague and when he did not immediately report the allegation of a teacher’s inappropriate behaviour to the proper authorities. Instead, he mistakenly assumed that, once the Principal was aware of the allegation, the Member’s duty to report the matter had been fulfilled. By failing to immediately report a serious allegation involving a teacher and a student to the appropriate authorities, the Member did not ensure a safe learning environment for Student 1.

11Additionally, the Member failed to act in accordance with the ethical standards of “Care,” “Respect,” “Trust” and “Integrity.” The ethical standard of “Care” requires members to be compassionate and committed to students’ well-being and learning through their professional judgment and empathy. The ethical standard of “Respect” requires members to honour human dignity and emotional wellness, and model respect for social justice. The ethical standard of “Trust” provides that members’ professional relationships with students, colleagues, parents, guardians and the public are based on trust, fairness, openness and honesty. The ethical standard of “Integrity” requires members to demonstrate honesty, reliability and moral action in their professional practice. The Member failed to adhere to all these ethical standards when he failed to take appropriate action to protect Student 1. Although he instructed Student 1 to report the allegation to the Principal, the Member discouraged Student 1 from revealing details about the allegation to him and did not report the allegations the proper authorities himself, as required.

12The Panel notes that the Member may not have had a legal duty to report the allegations to the proper authorities (namely the Children’s Aid Society) as Student 1 was not under 16 years of age. Nevertheless, the Panel finds that the Member had an ethical duty to report the allegations to the appropriate authorities, as noted in the College’s Professional Advisory – Duty to Report (Exhibit 2 at Exhibit B).

13The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). The Member failed to report a concerning allegation of a teacher’s inappropriate conduct to the proper authorities and instead assumed that his reporting obligations were fulfilled because the Principal had been made aware of the allegation. By discouraging Student 1 from disclosing the details to him and by failing to report Student 1’s allegation to the proper authorities, the Member exposed her to a risk of further harm and exercised poor professional judgment. As set out in the College’s Professional Advisory – Duty to Report (Exhibit 2 at Exhibit B), a member’s duty to report is, among other things:

• Immediate: if you have reasonable grounds to suspect that a child is in need of protection, report your suspicion, and the information on which it is based, immediately to the proper authorities.
• Direct: you cannot rely on anyone else to report on your behalf, nor can you delegate your duty to report.
• Ongoing: even if you have reported previously, you must make a further report if you suspect the child still requires protection.
• Overrides concerns about confidentiality: you are obliged to report even if a student tells you something “in confidence”.

Once a member has reasonable grounds to suspect child abuse or neglect, they have a duty to report it (and not to investigate). In this case, the Member failed to meet this professional obligation.

14The Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Students, parents, and the public expect that members of the teaching profession will exercise good judgment when caring for their children and will ensure that their children are safe and supported at school. The Member’s failure to take appropriate action to protect Student 1 undermines the reputation of the teaching profession and violates the trust that the public places in teachers to protect students.

F. PENALTY Decision

15The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 17, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, or by videoconference, 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 impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics with an emphasis on the duty to report. The Committee acknowledges that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee;

(b) the Member shall provide to the Registrar a written certificate from the course provider stating that the Member has successfully completed the course. The Committee acknowledges that the Member has fulfilled this requirement as of the date of the Decision, Reasons for Decision and Order of the Committee.

G. REASONS FOR PENALTY DECISION

16The 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. Opare, 2021 ONOCT 20; and Ontario College of Teachers v. Quaglia, 2018 ONOCT 17.

17The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case include the Member’s particular response to Student 1, telling her that he could not hear any further details about his colleague, which could have reasonably been discouraging and disheartening for a vulnerable student to hear. He also incorrectly assumed his obligation to report the allegation was fulfilled once the Principal became aware, despite his years of experience as a teacher. He ought to have been aware of his professional obligations and to have reasonably understood that his failure to report the allegation to the proper authorities immediately might put Student 1 or other students’ safety at risk. In terms of mitigating factors, the Panel considered that the Member did not dismiss Student 1’s allegations and encouraged her to report the allegations to the Principal; he participated in the discipline process and did not contest his misconduct, which saved the time and expense of a contested hearing; he has not been the subject of discipline proceedings in the past; and he has taken it upon himself to receive further education about the duty to report, and leads monthly staff meetings as a current principal in which he regularly addresses the importance of this duty. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

18The Panel finds that the Member’s professional misconduct warrants a reprimand. Members are expected to ensure students’ safety and well-being, which the Member failed to do immediately reporting the concerns shared with him by Student 1 to the proper authorities. 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.

19The Panel finds that the Member has already fulfilled the terms, conditions, or limitations imposed on his certificate of qualification and registration given that he has recently completed Parts I and II of the Principal’s Qualification program, which included an in-person presentation by the Children’s Aid Society about the duty to report. Given the parties’ agreement, the Panel accepts that no further coursework is necessary.

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; Bradley v. Ontario College of Teachers, 2021 ONSC 2303; and Ontario College of Teachers v. Merolle, 2023 ONSC 3453.