Ontario College of Teachers v. Ng, 2023 ONOCT 71

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Ng 2023 ONOCT 71

Date: 2023-10-10

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 Marcus Kar-Yew Ng, OCT, a member of the Ontario College of Teachers.

Between:

Ontario College of Teachers

– and –

Marcus Kar-Yew Ng (Registration # 459119)

Panel: Damienne Lebrun-Reid, Chair Scott Barker, OCT Élaine Legault

Heard: September 28, 2023

Counsel: Lisa Feinberg, for the Ontario College of Teachers Mandy Wojcik, for Marcus Kar-Yew Ng 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 September 28, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Marcus Kar-Yew Ng (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 November 22, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Marcus Kar-Yew Ng 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) 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);

(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. At all material times, Marcus Kar-Yew Ng 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 as an elementary teacher with the York Region District School Board (the “Board”).

3. Between September 2017 and December 2017, while on a long-term occasional teaching assignment at [XXX] School, the Member made inappropriate comments to Grade [XXX] students in front of the class, including:

(a) asking a student who had identified [XXX] to repeat back instructions several times;

(b) asking a student who had a known history of [XXX] to respond to questions when their hand was not raised;

(c) stating to students, on one or more occasions:

(i) “You have been here for three months you should know what is going on”;

(ii) “What you don’t know how to draw a square?”;

(iii) “No one in the class is able to read”;

(iv) “You are all behind”; and

(v) “You are in Grade [XXX] you should know how to do this by now”.

4. On January 15, 2018, the Member received a written reprimand from the Board with respect to the conduct described at paragraph 3.

5. In March 2019, while on a long-term occasional teaching assignment at [XXX] School, the Member brought a lighter and an inhalant device (a bong) into his classroom and left them on an unsecured shelf that was accessible to students for a period of three days. The lighter and inhalant device were subsequently found by janitorial staff.

6. On April 17, 2019, the Member received a written reprimand from the Board with respect to the conduct described at paragraph 5.

7. The Member was hired as a full-time contract teacher by the Board for the 2020-2021 school year and assigned to teach at [XXX] School for September 2020. In October 2020, the Member was reassigned to teach a Grade [XXX] class in the Board's [XXX] Virtual School.

8. In the 2020-2021 school year, while teaching his Grade [XXX] at the [XXX] Virtual School, the Member posted individual student attendance information online on a platform accessible by the entire class.

9. On January 29, 2021, which was Bell’s Let’s Talk Day, while teaching his Grade [XXX] class at the [XXX] Virtual School, the Member made inappropriate comments to students when discussing mental health, including:

(a) "one out of six teenagers have mental health issues, so which one of you guys do think it is going to be?";

(b) "which six of you think you have some sort of onset of poor mental health?"; and

(c) using the word “mental” when describing himself as a person with obsessive compulsive disorder.

10. The Member met with the Board and his Federation representative on or about February 5, 2021.

11. The Member resigned his employment with the Board on April 6, 2021 before the Board took any disciplinary action with respect to the conduct described at paragraphs 8 and 9.

PLEA OF NO CONTEST

12. 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 1-11 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that paragraphs 3-9 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) 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);

(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 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 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 Discipline 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 with respect to the penalty proposed does not bind the Discipline Committee; and

(g) 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.

15. 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.

16. 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

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 September 28, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.2), 1(18) and 1(19).

E. Reasons for Decision

7The 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 abused students, verbally, psychologically or emotionally by making insensitive and unprofessional comments to students, including those known to have [XXX]. Further, the Member engaged in conduct unbecoming a member and committed acts that would reasonably be regarded as dishonourable or unprofessional by bringing a lighter and inhalant device (a bong) into the classroom and leaving it in an unsecured place for three days.

8The Member abused students verbally contrary to Ontario Regulation 437/97, subsection 1(7). The Member made a number of inappropriate comments to students, including saying things such as “what you don’t know how to draw a square?”, “no one in this class is able to read”, and “which six of you have some sort of onset of poor mental health?”. The content and the tone of the Member’s comments to the students were belittling and condescending. Such comments would have been particularly hurtful to students with a [XXX], as they demonstrated a lack of sensitivity to students’ mental health struggles. As such, the Member’s offensive behaviour meets the definition of verbal abuse.

9The Member abused students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The Member deliberately singled out students with a [XXX] in front of the class. Additionally, the Member made a number of comments that trivialized student mental health issues and that had the potential to alienate and single out students with [XXX]. By making comments such as “which six of you think you have some sort of onset of poor mental health?” to a class of young teenagers, the Member inappropriately invited students with mental health issues to identify themselves in front of their whole class. Further, the Member made inappropriate and insensitive comments regarding the students’ academic progress. Teachers are expected to promote a learning environment that is safe and welcoming for students with all abilities. The Member’s comments had the potential to negatively affect students’ psychological and emotional well being. As such, the Panel finds that the Member’s conduct constitutes psychological and emotional abuse.

10The Member committed acts or omissions that, having regard to all the circumstances, would reasonably be regarded by members as dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). Disgraceful conduct is the most egregious; it is conduct that casts serious doubt on the Member’s moral fitness or ability to be a member of the profession. The Member’s conduct in this case does not rise to this severity. In this case, the Member’s misconduct consisted of leaving a lighter and a bong in an unsecured location in the classroom, putting students with [XXX] under unnecessary stress in the classroom, and making inappropriate comments to his class. This conduct represents a lack of sensitivity to students with exceptionalities and very poor judgment. The Panel therefore finds that the Member’s conduct would reasonably be regarded by members as dishonourable and unprofessional.

11The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Members of the teaching profession are expected to be sensitive to students’ exceptionalities and mental health issues, and to promote the academic success of students. The Member failed to do so by his actions. The Panel therefore finds that the Member’s conduct harmed the reputation of the teaching profession and the trust that the public place in members.

F. Penalty Decision

12The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on September 28, 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 two (2) 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 classroom management and sensitivity training, subject to the following conditions:

i. the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest 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

13The 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. Carle, 2020 ONOCT 135, Ontario College of Teachers v. Gartshore, 2020 ONOCT 143, Ontario College of Teachers v Merolle, 2023 ONSC 3453, Ontario College of Teachers v Nolis, 2019 ONCT 129, and Ontario College of Teachers v Vandenberg, 2018 ONOCT 15.

14The Panel considered the Member’s circumstances in comparison to the cases provided. There are three aggravating factors in the Member’s case. First, the Member singled out a student with a [XXX] and another student with [XXX] by his misconduct. Second, there were multiple incidents of misconduct, occurring on a number of occasions from September 2017 to January 2021. Third, the Member previously received warnings from the Board for his conduct, and he continued to make inappropriate comments to his class. In terms of mitigating factors, the Member plead no contest to the allegations made against him and he does not have prior discipline history with the College. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

15The Panel finds that the Member’s inappropriate conduct, despite warnings from the Board, warrants a reprimand. Members are expected to serve as role models for students and to create a safe and supportive learning environment for their students. The Member failed to do so by his misconduct. 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.

16Given the nature and severity of the Member’s misconduct, the Panel finds that a two-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 October 13, 2023, which is 15 days after the Panel’s Oral Decision and Order.

17The Panel finds that the courses of instruction regarding classroom management 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.

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 10, 2023

Damienne Lebrun-Reid Chair, Discipline Panel

Scott Barker, OCT Member, Discipline Panel

Élaine Legault Member, Discipline Panel

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.