Ontario College of Teachers v. Inkumsah, 2023 ONOCT 70

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Inkumsah 2023 ONOCT 70 Date: 2023-10-17

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 Asafua Inkumsah, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID ASAFUA INKUMSAH (REGISTRATION #693437)

PANEL: Alain Martel, OCT, Chair Susan Arbour, OCT Élaine Legault

HEARD: October 11, 2023

Zirka Jakibchuk, for the Ontario College of Teachers Jerry Raso, for David Asafua Inkumsah Renée Kopp, 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 October 11, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2David Asafua Inkumsah (the “Member”) did not attend the hearing and 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 May 30, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that David Asafua Inkumsah is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

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

(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);²

(d) 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. David Asafua Inkumsah is 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 Peterborough Victoria Northumberland and Clarington Catholic District School Board as a long-term occasional teacher at [XXX] School (the “School”) in Bowmanville, Ontario.

3. At all material times, Student 1 was a [XXX] year-old female student in the Member’s Grade [XXX] [XXX] class at the School.

4. On or about June 4, 2021, during a one-on-one virtual meeting via Google Meet with Student 1, the Member wore gym clothing, including sports shorts, on camera with the shape of his penis clearly visible under his shorts. He also adjusted his camera more than once, such that his pelvic area was showing, and asked Student 1 whether she could see him on the screen.

5. Student 1 indicated that she felt uncomfortable and that she found the Member’s conduct in the meeting to be disturbing.

6. The Board initiated an investigation into the incident. During the investigation, the Member stated that he did not intend to expose his pelvic area and did not have any ill intent in his actions.

7. After completing its investigation, the Board concluded that the Member, “showed a serious lack of respect and failed to demonstrate an understanding of professional boundaries”.

8. On June 18, 2021, the Board issued a discipline letter to the Member and suspended him for five days without pay. Attached hereto and marked as Appendix “B” is a copy of the Board’s discipline letter.

9. The Member grieved the discipline. On October 7, 2021, the Board and the Member arrived at an arbitrated settlement, which included the discipline letter being removed from the Member’s personnel file, the Member being reimbursed for the five-day unpaid suspension; and the Member resigning from his employment with the Board effective October 12, 2021.

PLEA OF NO CONTEST

10. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-9 above (the “Uncontested Facts”).

11. The Member hereby acknowledges that the conduct set out at paragraphs 4, 5, 7 and 8 of the Uncontested Facts constitutes 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(5), 1(18) (unprofessional conduct) and 1(19).

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 (including the appendices) 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 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 in this document does not bind the Discipline Committee; and

(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

13. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, 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

7Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.2) and 1(18) [disgraceful and dishonourable] of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegations was being sought as a by-product of negotiations in the adversarial process that resulted in the Statement of Uncontested Facts and Plea of No Contest. The Panel granted these requests.

8Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on October 11, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(18) [unprofessional] and 1(19).

E. REASONS FOR DECISION

9The Member did not contest the facts and exhibits referred to in paragraphs 4, 5, 7 and 8 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 maintain appropriate boundaries with a student during a virtual meeting.

10The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). In particular, the Member failed to adhere to the Ethical Standards for the Teaching Profession – care, respect, trust, and integrity. The ethical standard of “care” requires members to express their commitment to students’ well-being through professional judgement and empathy in practice. The standard of “respect” requires members to honor human dignity and emotional wellness. The Member failed to meet the standards of “care” and “respect” towards Student 1 through his poor professional judgement in exposing his pelvic area on camera. Further, the Member did not honor Student 1’s emotional wellness by failing to recognize that his conduct made her uncomfortable. The Member should have observed Student 1’s discomfort and adjusted his camera accordingly. The ethical standard of “trust” states that Members’ professional relationships with students are based on trust. By making Student 1 feel uncomfortable and disturbed in a one-on-one virtual meeting, the Member has eroded the trust on which his relationship with Student 1 was based. Finally, the ethical standard of “integrity” embodies honesty, reliability and moral action. The Member acted immorally by exposing his pelvic area to Student 1, thereby breaching this ethical standard. As a result, the Member demonstrated a serious disregard for his professional obligation to maintain a safe and respectful environment for students to learn.

11The 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 maintain appropriate boundaries and conduct himself in a professional manner by showing his pelvic area to a student on camera. The Member ought to have known that his actions would make Student 1 feel very uncomfortable. As such, the Member disregarded his professional obligations and failed to demonstrate sound professional judgment. The Panel therefore finds that the Member’s conduct would reasonably be regarded as unprofessional.

12The 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 ensuring their safety and comfort both in the physical and virtual classroom. The Member’s conduct undermines the integrity of the teaching profession and violates the trust that the public places 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 October 11, 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 via video conference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar of the Ontario College of Teachers (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 Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction, pre-approved by the Registrar, regarding professional boundaries and the appropriate use of technology and electronic communication, 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, Reasons for Decision and Order of the Discipline Committee; and

(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; and

(b) within 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 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. Bagshaw, 2018 ONOCT 54 and Ontario College of Teachers v. Erland, 2017 ONOCT 54.

15The Panel considered the Member’s circumstances in comparison to the cases provided. There are three aggravating factors in the Member’s case. Firstly, the Member exposed his pelvic area on camera with Student 1 multiple times during a virtual meeting. Secondly, Student 1 indicated that she felt uncomfortable and that the Member’s conduct was disturbing. Lastly, the Board investigated the incident and found that the Member showed a serious lack of respect and failed to demonstrate professional boundaries. In terms of mitigating factors, the Member plead no contest to his misconduct, saving the time and expense of a contested hearing. Additionally, the Member expressed sincere remorse, and the Panel accepts that the Member’s conduct was likely unintentional. Further, this incident occurred on a single occasion and the Member has not been the subject of discipline proceedings in the past. Additionally, the Member resigned from the Board following a grievance of a suspension imposed by the Board. 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 inappropriate conduct warrants a reprimand. Members are expected to provide a safe learning environment to students to foster their success, which the Member failed to do so by inappropriately making his pelvic area visible on camera and making Student 1 uncomfortable during a one-on-one meeting. 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.

17The Panel finds that the courses of instruction regarding professional boundaries and the appropriate use of technology and electronic communications 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.

18The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: October 17, 2023

Alain Martel, OCT Chair, Discipline Panel

Susan Arbour, OCT Member, Discipline Panel

Élaine Legault Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation narrowed to acts that would reasonably be regarded as unprofessional 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.